Bangalore District Court
State By Madiwala Police Station vs A-1 Dhanraj @ Dhanu on 28 September, 2021
IN THE COURT OF THE L ADDL.CITY CIVIL & SESSIONS JUDGE
SITTING AT CHIDREN'S COURT, BANGALORE.
Dated this the 28 th Day of September, 2021
- : PRESENT: -
Smt. B.K. KOMALA, B.A.L., LL.M.
L Additional City Civil & Sessions Judge,
Sitting at Children's Court, Bengaluru.
Spl.C.C. No.273/2018
COMPLAINANT : State by Madiwala Police Station,
Bangalore.
/ VERSUS /
ACCUSED : A-1 Dhanraj @ Dhanu
S/o Sathyamurthy,
24 years, R/at Dr.No.3/397,
Hanumanthanagar, Bagalur road,
Hosur taluk, Krishnagiri district,
Tamilnad.
A-2 Shiva @ Ponnuvannan
S/o Dandapani,
24 years, R/at No.6/12, Old
Vasanthanagar,
Bagalur road, Hosur taluk,
Krishnagiri district, Tamilnad.
(Rep.by SAS Advocate)
2 Spl.C.C. No.273/2018
1 Date of Commission of offence 29-01-2016
2 Date of report of occurrence 29-01-2016
3 Date of arrest of Accused 28-11-2016
Date of release of Accused 16-08-2019
Period undergone in custody 02 Years 08 Months 19 Days
by accused
4 Date of commencement of 25-02-2019
evidence
6 Date of closing of evidence 01-02-2020
7 Name of the complainant Lalit Mohan Rathi
8 Offences complained of Section. 397 IPC.
9 Opinion of the Judge Accused is found not guilty.
J UD GME N T
This is charge sheet filed by Madiwala Police against the
accused for the offence punishable under Sec.397 IPC.
2. The brief facts of the prosecution case are that:
On 29/10/2016 at about 8.30 p.m. near Cricket Academy,
15th cross, H.S.R. Layout 6 th sector, the present accused along
with two other persons came in a scooter and by showing knife
snatched a mobile phone from CW.2. Hence as per the complaint
given by CW.1 Madiwala Police having registered the case in
3 Spl.C.C. No.273/2018
Crime No. 147/2016 for the offence under Sec.397 IPC,
investigated the matter and after completion of investigation filed
charge sheet before jurisdictional magistrate. The learned
magistrate after taking cognizance secured the accused No. 2 that
is the present accused and having split up the case against other
two accused in split up case No.C.C.9048/2018, committed that
case against the present accused under Sec.209 Cr.P.C.
3. After receipt of records form the committal court this
court registered the case and accused was produced from
Judaical custody. Later accused has been enlarged on bail. After
complying with Sec 226 Cr.P.C, charges were framed and read
over to accused. Accused pleaded not guilty and claimed to be
tried. In support of the prosecution case, 4 witnesses have been
examined as PW. 1 to 4. 10 documents have been marked as
Ex.P.1 to Ex.P.10. A mobile phone has been marked as MO1. The
statement of the accused under Sec.313 Cr.P.C has been
recorded. The accused has denied the incriminating evidence.
There is no defense evidence.
4 Spl.C.C. No.273/2018
4. Heard the arguments. Perused the records.
5. From the materials placed before the court, following
points arise for my consideration:
1. Whether the prosecution has proved beyond
reasonable doubt that on 29/10/2016 at about 10.30
p.m. near Cricket Academy at HSR Layout, the
accused along with two other persons by showing
knife to CW.2 snatched his mobile phone and thereby
committed an offence punishable under Sec.397 IPC?
2.What order?
6. After the close scrutiny of the oral and documentary
evidence and after hearing the arguments, my findings to the
above points are as follows.
Point No 1 : In the Negative
Point No 2: As per the final order for the following:
5 Spl.C.C. No.273/2018
REASONS
7. Point No 1 : The offence alleged against the accused is
under Sec.397 IPC. To prove the said offence the prosecution
must prove the following points :
The accused committed robbery by using any deadly
weapon the are he caused hurt to any person or attempted to
cause death or grievous hurt. The offence of robbery it has been
defined under Sec.390 IPC has either deft or extortion. What is
extortion has been explained as if the offender at the time of
committed extortion put any person in fear of instant death,
instant hurt or instant wrongful restraint so as to deliver up the
thing extorted. Therefore in the case on hand, according to the
prosecution the accused by putting CW.2 in fear by showing knife
snatched the mobile phone. Therefore as rightly argued by the
counsel for accused heavy burden lies upon the prosecution to
prove that the accused possessed knife. It is also to be proved
that a mobile phone was snatched from the custody of CW.2. In
this regard the prosecution has examined 4 witnesses PW.3 is
6 Spl.C.C. No.273/2018
the victim and PW.4 is the informant. PW.1 is cited as an
attesting witness to spot mahazar. PW.2 is the investigating
officer. No doubt PW.1 and 2 have fully supported the case of the
prosecution. However PW.1 being only an attesting witness to the
spot Mahazar conducted on the next day of incident, his evidence
is not of much significance in proving the above ingredients.
8. PW. 4 is the complainant. He is the father of the
victim/CW.2. He has deposed in chief examination that during
January 2016, when CW.2 was walking near his house, two
unidentified persons came to the spot in a bike and by snatching
the mobile which was in the hands of the victim went away. He
has identified Ex.P9 as the complaint given by him. However in
Ex.P.9 it is stated that some 3 persons had come in a black
scooty and by showing knife snatched the mobile of CW.2. It is
pertinent to note that the complaint has also been given on the
same day within one hour of the incident. Therefore it can be
seen that the oral evidence of the informant is quite contrary to
the recitals of the complaint as regards number of persons and
7 Spl.C.C. No.273/2018
also as regards the alleged showing of knife. Further it is
pertinent to note that PW.4 has not identified the mobile phone
produced before the court as the phone which was snatched by
the accused from the custody of CW.2. In fact he has denied that
he has given further statement as per Ex.P.10 that he identified
the accused and mobile phone in police station on 05/10/2016.
Therefore the evidence of the complainant has proved fatal to the
case of the prosecution.
9. PW.3 is the victim. In his chief examination he has
deposed that on 29/01/2016 at 10.30 p.m. when he was
watching his brother's mobile, 3 persons came in a scooty and
one of them snatched his mobile by showing knife. He has further
deposed that he had thrown the mobile on the road which was
taken by the said person who was holding the knife. It is
important to note that even PW.3 did not identified MO1 has the
said mobile. He has further clarified that when he threw the
mobile on the road, the screen was damaged but in MO1 there is
no such damage to the screen. But during cross examination
8 Spl.C.C. No.273/2018
conducted nearly the after 2 years, he has identify MO1 as the
said phone which was snatched and the accused before the court
as the one who also participated in the above crime. However it is
pertinent to note that admittedly MO1 is an HTC mobile phone.
Neither in the complaint nor during oral evidence of the
informant, there is any description of the mobile which was
allegedly extorted from CW.2. To attract Sec.397 Cr.P.C the
prosecution must prove that the accused were armed with deadly
weapon or their caused any hurt or attempted to cause heart or
put the victim in the fear of instant death or hurt. Hence the
recovery of knife as alleged by the prosecution is very material in
this case. However there is no iota of material to prove that the
said knife which was allegedly used by the accused has been
seized. On the other hand as per the oral evidence of PW.4 two
persons snatched the mobile phone from the CW.2 and ran away.
There is no whisper that the accused were armed with knife or
any other deadly weapon as contemplated under Sec.397 IPC or
390 IPC.
9 Spl.C.C. No.273/2018
10. As regards the identification of mobile and the
implication of the accused in the present case, the prosecution
has heavily relied upon the alleged voluntary statements of the
accused recorded in Crime No.1043/2016. According to the
evidence of PW.2, the investigating officer the present accused
along with two another accused were traced out in a case relating
to crime No.1043/2016 registered for the offences under
Sec.399,402 IPC and during the course of investigation in the
said case, the accused gave voluntary statement leading to
recovery of the stolen property pertaining to this case that is
Crime no.147/2016. The prosecution has produced the copies of
the alleged voluntary statements of the accused which have been
marked as Ex.P6 to P8. Though they have been admitted in
evidence, it is seen that in none of the said statements there is a
specific recital that the property that is mobile phone pertaining
to Crime No.147/2016 was in the house of any of the accused
herein and on the basis of the said voluntary statements the
stolen property of Crime No 147/2016 has been seized. Ex.P.4 is
10 Spl.C.C. No.273/2018
the copy of the seizer mahazar dated 10/04/2016 which is said to
have been conducted on the basis of the said voluntary statement
of the accused. It is stated in Ex.P4 that one HTC mobile, one
Sony mobile and one Motorola mobile were seized along with cash
of Rs.2000/-. Therefore neither in the complaint nor in the oral
evidence of the complainant there being any statement that the
mobile that was stolen in crime no.147/2016 was an HTC mobile,
it is to be held that the prosecution has failed to prove that the
HTC mobile seized under Ex.P4 pertains to the present case. In
fact as stated above neither the complainant nor the victim
identified MO1 as the mobile that was extorted in Crime
No.147/2016. Such being the case it is to be observed that there
is no link in the chain of events as adduced by the prosecution.
The prosecution has failed to prove that MO 1 was the mobile
snatched form the possession of CW.2 and it was the mobile
phone that was recovered under Ex.P4 as per the voluntary
statement of the present accused at his instance. Therefore the
prosecution has failed to prove the ingredients of Sec.397 IPC
11 Spl.C.C. No.273/2018
beyond reasonable doubt. In fact according to complainant and
the oral evidence of PW.3, some unknown persons had snatched
the mobile. Therefore identification of the accused is also
material. The complainant has specifically denied that he has
given statement as per Ex.P10 that he identified the accused in
police station. Moreover no where it is stated by the prosecution
that the complainant was an eyewitness to the incident. The
victim/PW.3 in his chief examination conducted during 2019 has
deposed that whether he can identify the accused or not cannot
be stated by him. But during 2021 he has denied that the
present accused was not one among the said 3 persons.
Therefore there is no specific proof of identification of the present
accused also. Hence because of the above material contradictions
and omissions, this court is constrained to observe that the
prosecution has failed to prove the guilt of the present accused
under Sec.397 IPC beyond reasonable doubt. In such
circumstances the accused would be entitled for benefit of doubt.
Hence I answer point No 1 in the Negative.
12 Spl.C.C. No.273/2018
Point No.4:- In the result, I proceed to pass the following:
ORDER
Acting under Sec. 235 (1) of Cr.P.C the accused is acquitted for the offence punishable under Sec.397 IPC. The bail bond and surety bond of the present accused shall stand cancelled. MO1 shall be preserved till the disposal of split up case.
(Dictated to stenographer Niveditha S Acharya directly on computer corrected and then pronounced in open court on this day of 28-09-2021.) (B.K. KOMALA) L ADDL.CITY CIVIL & SESSIONS JUDGE, Sitting at Children's Court, BANGALORE AN N E XU RE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1/CW.2 Shyamsundar PW.2/CW.10 Mallesh Bhollethin PW.3/CW.3 Chandramouli PW.4/CW.1 Lalhit Mohan Rati LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION 13 Spl.C.C. No.273/2018 Ex.P.1 Spot Mahazar Ex.P.1(a) Signature of PW.1 Ex.P.1(b) Signature of Witness Ex.P.2 Report Ex.P.2(a) Signature Ex.P.3 report Ex.P.3(a) Signature Ex.P.4 Seizure mahazar Ex.P.4(a) Signature Ex.P.5 P.F. Ex.P.6 to 8 voluntary statement of accused Ex.P.9 Complaint Ex.P.9(a) Signature of PW.4 Ex.P.10 Statement of PW.4 LIST OF MATERIAL OBJECTS MARKED MO 1 HTC Mobile LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
-Nil-
LIST OF WITNESSES EXAMINED & M.OS MARKED ON BEHALF OF DEFENCE
-Nil-
(B.K. KOMALA) L ADDL.CITY CIVIL & SESSIONS JUDGE, Sitting at Children's Court, BANGALORE.
14 Spl.C.C. No.273/2018 15 Spl.C.C. No.273/2018 16 Spl.C.C. No.273/2018.