Bangalore District Court
State Of Karnataka By vs A.5 Madhan Kumar on 11 December, 2017
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 11th day of December 2017.
Present :
Sri.Parameshwara Prasanna.B, B.A.,LL.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.1174 / 2012
COMPLAINANT:- State of Karnataka by
Banashankari Police Station,
Bengaluru.
(Rep by Public Prosecutor)
:VS:
ACCUSED A.5 Madhan Kumar,
S/o Nagarajan,
Aged about 32 years,
R/at No.26, 3rd Cross,
1st Floor, Chikkatayappa Building,
Tavarekere, Bangalore City,
(case against A1,2,3,4&6 were split
up)
(By Sri GRDG for A.5, Advocate)
1. Date of Commission of offence : 7.06.2012
2. Date of report of offence : 7.06.2012
3. Arrest of the accused : A.1 to 6 arrested on
7.6.2012
4. Name of the complainant : Sri.Prakash.R
PSI, CCB, (OCW
Bengaluru)
5. Date of commencement of trial : 1.8.2014
2 SC. No.1174/2012
6. Date of closing of evidence : 7.12.2017
7. Offences complained of : U/s.399 and 402
8. Opinion of the Judge : A5 is acquitted
U/s.235(1) of Cr.P.C
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
JUDGMENT
The present case arise out of charge sheet submitted by Banashankari police station, Bengaluru in crime No. 168/2012 against accused Nos.1 to 6 for the offences punishable u/s 399 and 402 of Indian Penal Code.
2. The case of the prosecution in brief is that, On 7.6.2012 evening at about 6-00 pm when Police Sub- Inspector Mr. R.Prakash was on duty in his CCB office, Bengaluru City he received credible information that about 6 to 7 persons being equipped with deadly weapons by parking Maruthi Zuki Car bearing registration No.KA-05-MG-5674 by side of the road at 7th block (West) Jayanagara Near Jagadguru Shankaracharya Circle, Bengaluru within limits of Banashankari Police station were making preparation to rob the public who may come to draw the 3 SC. No.1174/2012 money from the ATM in the said road. Immediately, he secured CW2 & 3 and his staff CW4 to 8 and informed them about the credible information received by him and he along with CW2 to 8 in the vehicle of the Department left CCB office at 6-15pm and reached near by spot at 7-00 pm and by deboarding from the vehicle at a considerable distance they noticed 6 to 7 persons near car parked by side of the road near Electric Transformer behind Das Commercial complex who were conversating with each other and on observation of their behaviour, CW1 suspected that they were hatching conspiracy to commit the dacoity and as such he along with his staff in presence of panchas conducted raid and they nabbed accused No.1 to 6 and on enquiry accused NO.1 to 6 revealed their name and address and they confessed that they were making preparation for committing dacoity and by drawing mahazar at the spot from 7- 15 to 8-15 pm CW1 and his staff seized one long, one rod, two club, one chilly powder packet , one toy pistol and 6 mobile phone and a Maruthi Zuki Car bearing registration No.KA-05-MG- 5674. Thereafter, the CW1 along with his staff brought the accused No.1 to 6 along with seized articles to Banashankari Police Station and handed over the accused No.1 to 6 along with seized articles to Cw10 and on submitting of the report along 4 SC. No.1174/2012 with mahazar by CW1 CW10 registered FIR against the accused No.1 to 6 for the offences punishable under section 399 and 402 of IPC.
3. After completion of investigation charge sheet has been filed by CW10 against the accused No.1 to 6 which was registered in CC.No.18080/2012 before the learned 3rd ACMM, Bengaluru. Since the offences are exclusively triable by the court of Sessions, the learned 3rd ACMM, as per order dated 14.08.2012 committed the case against accused Nos.1 to 6 to the Hon'ble Prl.City Civil & Sessions Judge, Bangalore. That on committal of case to the Hon'ble Prl.City Civil & Sessions Judge, case was registered in S.C.No.1174/ 2012 and the same was made over to this Court for disposal in accordance with law.
That after admitting of case as the accused Nos.1and 6 were not secured, despite of issuance of NBW case against them came to be spilt up in SC.No.463/2013 as per order of this court dated 16.3.2013. Thereafter, after hearing prosecution as well as learned defence counsel U/s.227 of Cr.P.C, this Court famed charge against accused Nos.2,4,& 5 for the offences punishable under Sections 399 and 402 of IPC. When the charge was read over and explained to the accused Nos. 2,4 & 5, they pleaded not 5 SC. No.1174/2012 guilty and claims to be tried. Subsequently, since the accused No.2 & 4 were also remained absent and could not be secured despite of issuance of NBW case against the accused No.2 & 4 also came to be split up as per order of this court dated 23.6.2017
4. That in order to prove the case of the prosecution, out of 10 witnesses cited in the charge sheet, the prosecution got examined CW1 and CW10 as Pw.1 and PW2 respectively and got marked the documents as per Ex.P.1 to 4(a) and alleged seized articles as M.Os.1 to 4. Since despite of sufficient opportunity the concerned police have not secured the remaining witnesses in order to uphold speedy trial , the prayer of learned Public Prosecutor for reissuing further process against remaining witnesses was refused and the prosecution evidence was taken as closed. Thereafter, the statement of accused No 5 was recorded under Section 313 of Cr.P.C. Accused No 5 when examined U/s.313 of Cr.P.C denied the incriminating circumstances appearing in evidence against him. Accused No 5 has not led any defence evidence on his behalf.
5. Heard argument of both the sides.
6. Under the facts and circumstances of the case, the following points arise for consideration of this Court: - 6 SC. No.1174/2012
-: POINTS :-
1) Whether the prosecution proves beyond all reasonable doubt that, on 7.6.2012 night at 7-00 pm accused No.5 along with absconding accused No.1 to 4 and 6 being equipped with deadly weapons by parking Maruthi zuki car bearing registration No.KA-05-MG-5674 formed unlawful assembly near Jagadguru Shankaracharya Circle, 7th block, Jayanagara west, Bengaluru City and accused No.5 along with other accused was making preparation for robbing the public who may come to near by ATM for drawing money and thereby committed the offences punishable under section u/s 399 and 402 IPC?
2) What Order?
7. My findings on the above points are as under : -
Point No.1 - In the negative Point No.2 - As per final order for the following:-
REASONS
8. POINT No.1 : -
The case of the prosecution in brief is that, on 7.6.2012 night at 7-00 pm when the accused No.5 along with spilt up accused No.1 to 4 and 6 being armed with deadly weapons by parking Maruthi zuki car bearing registration No.KA-05-MG-5674 near Jagadguru Shankaracharya Circle, 7th block, Jayanagara west, Bengaluru City was making preparation for committing dacoity, CW1, along with his staff CW4 to 9 in the presence of panchas CW2 & 3 conducted raid, nabbed accused No.1 to 3 and 7 SC. No.1174/2012 seized one long, one rod, two club , one chilly powder packet, one toy pistol and 6 mobile phone and Maruthi zuki car bearing registration No.KA-05-MG-5674 by drawing mahazar at the spot from 7-15 to 8-15 pm. Thereafter, the CW1 along with his staff brought the accused No.1 to 6 along with seized articles to Banashankari Police Station and handed over the accused No.1 to 6 along with seized articles to Cw10 and on submitting of the report along with mahazar by CW1, CW10 registered FIR against the accused No.1 to 6 for the offences punishable under section 399 and 402 of IPC.
9. That in order to prove case of the prosecution, out of 10 witnesses cited in the charge sheet the prosecution got examined two witnesses i.e, Cw1 & CW10 as Pw.1 & PW2 respectively and got marked Ex.P.1 to P4(a) and material objects as M.Os. 1 to 4.
10. In this case the crucial and material witnesses to the prosecution namely Cw.2 & 3 who are the alleged independent witness to the recovery mahazar have not been examined by the prosecution. As such the adverse inference is to be drawn against the prosecution under Section 114 of Indian Evidence Act for non examining those crucial and material witnesses. 8 SC. No.1174/2012
11. In this case CW1 who examined as PW1 deposed that he with the assistance of his staff in the presence of panchas conducted raid and nabbed accused No.1 to 6 who were making preparation for committing dacoity. During the cross examination he stated that there was street light at the incident spot and the alleged incident place was inhabited by the public. PW1 claims that the alleged spot is a public place but the local residents near by the spot are not arrayed as witness to the Ex.P.2 mahazar. CW2 and 3 who are alleged witnesses to the Ex.2 spot mahazar admittedly are not the local residents. PW1 has not explained as to how he analyzed that accused No.1 to 6 have conceived the design of committing dacoity. The evidence of PW1 does not disclose the attempt made by the accused No.1 to 6 to escape from the spot or regarding any resistance by the accused NO.1 to 6 during raid. It is not natural that the 6 persons armed with deadly weapons neither offered any resistance nor caused any injury to the any of the police personnel during the alleged raid.
12. As laid down in Agar v/s State of Rajasthan, reported in 2003 Criminal Law Journal 1997 it is settled law that, "to constitute an offence under section 399 of IPC some act amounting to preparation must be proved". But in the present 9 SC. No.1174/2012 case as looking into evidence of Pws.1 and 2, the prosecution has not proved any act amounting to preparation for committing dacoity. Further as laid down in Joseph /vs/ State of Kerala reported in 1993 SCW 2900, the prosecution must show that there were persons who had conceived design of committing dacoity. But in the present case there is no cogent and material evidence to believe the case of the prosecution that the accused have designed the committing of dacoity.
13. In the instant case, since C.W.2 & C.W.3, who are alleged witnesses to the raid and recovery, have not examined the alleged raid and recovery itself is not proved by the prosecution. In view of the various discrepancies in the case of the prosecution referred above and due to non-corroboration of evidence of P.W.1 & P.W.2 by the independent witnesses to the raid and recovery, the evidence of P.W.1 & P.W.2 does not inspire confidence.
14. At this juncture, I feel it necessary to quote following Judgments reported by the Hon'ble Apex Court and Hon'ble High Court of Karnataka pertaining to offence punishable under Sections 399 and 402 of IPC:-
10 SC. No.1174/2012
In Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, the Hon'ble Apex Court has held that:
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises, which was quite close to the market at 1. a.m., and that some of them were armed with guns, some had cartridges and others ran away - held that, conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m., did not by itself prove that they had assembled making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated Decision of Patna High Court, Reversed".
15. That the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction and order of sentence - Re- appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery -
The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case.11 SC. No.1174/2012
Further held, In view of the material contradictions in the evidence of Pws.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt.
16. Thus it is clear from the above precedents that to sustain conviction under Sections 399 and 402 of I.P.C., the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that the persons assembled conceived any such designs for commission of dacoity and in fact they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to show that accused Nos. 1 to 5 were making preparation to commit dacoity. In view of the fact and circumstances of the case and precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused No. 5 beyond all reasonable 12 SC. No.1174/2012 doubt and as such accused No.5 is entitled for benefit of doubt. Hence, point No.1 is answered in the Negative.
17. POINT NO.2: - In view of the reasons discussed as above the following:-
ORDER Acting u/s 235 (1) of Cr.P.C, A.5- Madhan Kumar is acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The bail bond and surety bond of accused No.5 is hereby cancelled.
The articles marked as Mo1 to 4 shall be preserved for trial of split up accused No. 1 to 4 and 6.
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.5 along with a surety for the likesum as required under section 437-A of Cr.P.C.
(Dictated to the Stenographer transcribed and computerised by her, corrected and then pronounced by me in the open court this the 11th day of December , 2017).
(Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, Bengaluru.
13 SC. No.1174/2012ANNEXURE I. List of witnesses examined on behalf of the Prosecution side:-
PW.1 R.Prakash
PW.2 Chikkasiddaiah
II. For Defence Side:
-NIL-
III. List of exhibits marked on behalf of the Prosecution Side:-
Ex.P.1 Statement of CW1
Ex.P.1(a) Signature of CW1 in statement
Ex.P.1(b) Signature of CW10
Ex.P.2 Mahazar
Ex.P.2(a) Signature of CW1
Ex.P.3 Sample seal
Ex.P.3(a) Signature in sample seal
Ex.P.4 FIR
Ex.P.4(a) Signature CW10
IV. For Defence Side:-
-NIL-
IV. List of material objects:
M.O.1 &2 Wooden piece (Marada Donne)
M.O.3 Rod
M.O.4 Long
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
14 SC. No.1174/2012
Accused is Present.
(Order pronounced in the open Court)
ORDER
Acting u/s 235 (1) of Cr.P.C, A.5-
Madhan Kumar is acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The bail bond and surety bond of accused No.5 is hereby cancelled.
The articles marked as Mos.1 to 4 shall be preserved for trial of split up accused Nos. 1 to 4 and 6.
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.5 along with a surety for the likesum as required under section 437-A of Cr.P.C.
LXII ACC & SJ, Bengaluru.