Bangalore District Court
State By K.G.Halli Police Station vs 2. Irfan Ulla on 7 September, 2020
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IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 7th day of September 2020
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.1429/2016
COMPLAINANT:- State by K.G.Halli Police Station,
Bengaluru.
-Vs-
ACCUSED: 2. Irfan Ulla,
S/o. Jiya Ulla,
Aged about 27 years,
R/at.No.105, 2nd Main,
7th Cross, Vinobhanagara,
K.G.Halli, Bengaluru city.
(Accused No.2).
Chand Pasha
(Case against Accused No.6 Split
up).
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S.C.No.1429/2016
1. Date of commission of offence :29.5.2015
2. Date of report of offence : 29.5.2015
3. Date of arrest of the Accused : 29.5.2015
4. Name of the complainant : Sri. T.Srinivas
5. Date of recording evidence : 21.3.2018
6. Date of closing evidence : 27.8.2019
7. Offences complained of : U/Sec.399 & 402
of I.P.C.,
8. Opinion of the Judge : Offences against
Accused No.2 are not
proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri.Abdul Raheem
adv. for A.2
JUDGMENT
Police Inspector of K.G.Halli police station, Bengaluru have filed charge sheet against accused No.1 to 7 for the offences punishable U/s.399 and 402 of I.P.C., in Cr.No.237/2015.
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S.C.No.1429/2016
2. Brief facts of the prosecution case is as follows; In the charge sheet it is alleged that, on 29.5.2015 at about 7.30 p.m., near Angalaparameshwari Temple, and burial ground, situated at Pillanna Garden 3 rd stage, within the jurisdiction of Kadugondanahalli police station, accused persons assembled armed with two knives, one iron rod, 3 wooden clubs, prepared for commission of dacoity being member of unlawful assembly present on the spot to rob passer thereby accused No.1 to 7 have committed offences punishable U/s.399 and 402 of I.P.C.
3. On the basis of the credible information, Cw.1/Sri. T.Srinivas the then police inspector of K.G.Halli police station, proceeded to the spot along with 2 panch witnesses and police staff, conducted raid, arrested accused No.1 to 6, seized two knives, one iron rod, three wooden clubs under the cover of panchanama. On the basis of the report submitted by Cw.1/T.Srinivas, the then S.H.O. of K.G. Halli 4 S.C.No.1429/2016 police station registered F.I.R. against the accused persons, send the same to the jurisdictional court and copies to the higher officers. During the course of investigation, investigating officer enquired , recorded voluntary statements of the accused No.1 to 6. statements of Cw.2 and Cw.3 panch witnesses, Cw.4 to Cw.9 police staff, who participated in the raid. Investigating officer entered the seized deadly weapons in station property form and reported the same to the jurisdictional court. Accused No.1 to 6 were produced before the court along with remand application. After completion of investigation, investigating officer filed charge sheet against accused persons for offences punishable U/s.399 and 402 of I.P.C.
4. Cognizance for the offences shown in the charge sheet was taken against the accused by the Learned Magistrate. Thereafter, criminal case against accused was registered in C.C.No.51118/2016 on the file of XI- 5
S.C.No.1429/2016 Addl.Metropolitan Magistrate, Bengaluru. Despite issuance of warrants, presence of accused No.1, 3 to 7 not traced out. Hence, case against accused No.1, 3 to 7 split up. Since offences alleged against accused No.2 and 6 are triable exclusively by the court of Sessions, this case is committed to the court of sessions. After committal, this case is re-registered as S.C.No.1429/2016. During the trial, despite issuance not warrants, presence of accused No.6 not traced out. Hence, case against accused No.6 is split up.
5. After hearing, on 4.8.2017 charge against accused No.2 framed, which he denied and claims to be tried.
6. To prove the ingredients of the offences charged against the accused, prosecution examined 8 witness as Pw.1 to Pw.8 and got exhibited 10 documents at Ex.P.1 to Ex.P.10 and got identified 6 material objects at Mo.1 to Mo.6.
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S.C.No.1429/2016
7. On completion of evidence of prosecution side, all incriminating circumstances available in the evidence of the prosecution were explained to the accused No.2, as required U/s.313 of Cr.P.C., and recorded his statement. Accused No.2 denied all incriminating circumstances, evidence found in the prosecution side evidence. Accused have not produced any documents, materials on his behalf. Further no defence evidence led by the accused person.
8. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused.
9. Now, points arising for determination are as follows:
1. Whether prosecution proves beyond reasonable doubt that, accused No.2 along with other accused No.1, 3 to 7 on 29.5.2015 at about 7.30 p.m., near Angala 7 S.C.No.1429/2016 parameshwari Temple, and burial ground, situated at Pillanna Garden 3rd stage, within the jurisdiction of Kadugondanahalli police station, were making preparation to commit dacoity i.e. to rob passer on the road by holding deadly weapons and thereby committed an offence punishable under Sec.399 of the Indian Penal Code as alleged in the charge sheet?
2. Whether prosecution proves beyond reasonable doubt that, on the same date, time and place accused No.2 along with other accused No.1, 3 to 7 assembled for the purpose of committing dacoity and thereby committed an offence punishable under Sec.402 of I.P.C., as alleged in the charge sheet?
3. What Order ?
10. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
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S.C.No.1429/2016
Point No.2 : In the Negative
Point No.3 : As per final order
for the following:
REASONS
11. POINT NOS.1 & 2:- These points are taken together to avoid repeated discussions.
12. In order to prove ingredients of the charges framed against accused for offences punishable U/s.399 and 402 of I.P.C., prosecution examined 8 witnesses exhibited 10 documents, marked 6 objects.
12.1) Pw.1/Cw.10/ Raheem is the then P.S.I. of K.G.Halli police station. In his evidence, Pw.1 deposed that from 18.9.2014 upto 26.7.2016 he served as P.S.I. in K.G.Halli police station. On 29.5.2015 night at 10.30 p.m., he was on duty. Cw.1/ T.Srinivas police inspector of the station submitted one report, produced accused No.1 to 6 along with seized articles. On the basis of the report submitted by Cw.1/T.Srinivas, he registered F.I.R. in 9 S.C.No.1429/2016 Cr.No.237/2015 against accused persons. Pw.1 identified complaint at Ex.P.1 and his signature on Ex.P.1 at Ex.P.1(a). Pw.1 identified F.I.R. at Ex.P.2 and his signature of F.I.R. at Ex.P.2(a).
12.2 Pw.1 further deposed that he entered seized weapons produced by Cw.1 in station property form. He sent F.I.R. to the court. He identified Mo.1/ one knife, Mo.2/one iron rod, Mo.3/ wooden club, Mo.4/knife, Mo.5 and Mo.6/two wooden clubs. During the course of investigation, he interrogated and recorded voluntary statement given by the accused. Pw.1 identified panchanama produced by Cw.1 at Ex.P.3. He identified voluntary statements given by accused No.1 to 6 at Ex.P.4 to Ex.P.9. He recorded statements of other witnesses i.e., police staff and panch witnesses. He sent accused No.1 to 6 along with remand application to the court. Pw.1 identified accused No.2 present before the court. Pw.1 deposed that, he can identify 10 S.C.No.1429/2016 other accused who are not present before the court. Accused No.7 remain absent. After completion of investigation, he submitted charge sheet against the accused persons.
12.3) In the cross-examination Pw.1 admitted that, Cw.1 is his higher officer.
12.4) In the cross-examination, Pw.1 denied the suggestion that signatures of panch witnesses is not present on chit affixed on Mo.1 to 6. Pw.1 denied the suggestion that, accused persons had not given voluntary statements as per Ex.P.4 to 9. Pw.1 denied the suggestion that, on the basis of false report submitted by Cw.1 he registered false case for statistical purpose against the accused persons. Pw.1 denied suggestion that on the basis of the false panchanama, he submitted false property form. Pw.1 denied the suggestion that, Mo.1 to 6 were not seized from the possessions of the accused persons. Pw.1 denied 11 S.C.No.1429/2016 the suggestion that, even though accused No.2 has not committed any offences, a false charge sheet is filed.
13. Pw.2/Cw.3/ Chandru is mahazar witness to the seizure panchanama. In his evidence, Pw.2 deposed that signature on Ex.P.3 seizure panchanama is his signature and the same is marked at Ex.P.3(a).
13.1) Pw.2 deposed that about 4 - 5 years back in the matter of theft of his phone he went to K.G.Halli policed station. At that time, police had taken his signature on Ex.P.3. He do not know contents written on Ex.P.3. Police had not prepared any panchanama in his presence. No articles were seized. No one was arrested. He had not given any statement to the police. As Pw.2 deposed against to the interest of prosecution summoned for examination, after treating Pw.2 as hostile with permission of the court, learned Public Prosecutor appearing for the State cross- examined Pw.2.
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S.C.No.1429/2016 13.2) In the cross-examination Pw.2 denied the suggestion that on 29.5.2012 near Angalaparameshwari Temple and burial ground situated at Pillanna garden, 3 rd Stage under the cover of Ex.P.3 panchanama police arrested accused persons, seized Mo.1 to 7 articles in his presence. Pw.2 further denied that he was present on the spot and signed to Ex.P.3/panchanama. Pw.2 further denied the suggestion that, he had given statement to the police as per Ex.P.10. Pw.2 further denied the suggestion that, to help accused persons, he is deposing false.
14. Pw.3/Cw.8/ Shaju Anthoni is the then police head constable in K.G.Halli police station. In his evidence Pw.3 deposed that, from 2011 to 2017 he served as police H.C.No.4842 in K.G.Halli police station. On 29.5.2015 at 4.30 p.m., evening, Cw.1/Srinivas police inspector had taken him along with staff to the spot of the incident, informing 13 S.C.No.1429/2016 that a credible information about preparation for the commission of dacoity near Pillanna Garden. They went to the spot, got information confirmed by observing by parking the vehicle in a nearby side. Six persons got arrested when conducted raid. One person succeeded to ran away. When name and address of the persons got arrested is enquired, they revealed their names as accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha. Name of the person ray away from the spot is disclosed as "Chethan". When enquired for the reason for their presence on the spot, arrested persons informed that in order to commit robbery of passer, they were present on the spot. On search, two knives, one rod, 3 clubs were found with them. By preparing the panchanama on the spot in the presence of panch witnesses, all those weapons were seized. They returned along with accused persons, seized articles , 14 S.C.No.1429/2016 panchancama to police station at 9.30 p.m., produced before S.H.O. Cw.1 submitted a report to register the case against the accused. Pw.3 identified panchanama at Ex.P.3 and his signature on Ex.P.3 at Ex.P.3(b). Pw.3 identified Mo.1 to 6 before the court. Pw.3 identified accused present before the court. Pw.3 deposed that he can identify other accused. Pw.3 further deposed that he had given statement to the investigating officer.
14.1) In the cross-examination Pw.3 admitted that he do not know from where Cw.2 and 3 panch witnesses were summoned. They were summoned by the inspector. Pw.3 admitted that it was 6.45 p.m., when cw.2 and 3 came to police station. Pw.3 admitted that spot of incident is 2 - 2.5 k.m. away from station. Pw.3 admitted that at 7.30 p.m., they left police station and reached to the spot at 7.45 p.m. Pw.3 admitted that spot of incident he is busy area. Pw.3 admitted that Angalaparameshwari temple always 15 S.C.No.1429/2016 used to remain open. Pw.3 admitted that public used to visit Angalaparameshwari temple. Pw.3 admitted that public used to move on the said spot. Pw.3 admitted that he was not caught accused No.2.
14.2) Pw.3 denied the suggestion that, he along with other staff, had not visited to the spot of incident. Pw.3 denied the suggestion that, this case is registered by calling the accused person to the police station, against whom already a case was registered. Pw.3 denied the suggestion that, Ex.P.3 was not written on the spot. Pw.3 denied the suggestion that as stated by the higher officer, he is deposing false.
15. Pw.4/Cw.9/ Khajanijamuddin is the then A.S.I. of K.G.Halli police station. In his evidence Pw.4 deposed that since last 4 years he is serving as A.S.I. in K.G.Halli police station. On 29.5.2015 evening at 6.30 p.m., Cw.1/Srinivas had taken him along with other staff stating that he got 16 S.C.No.1429/2016 information about conspiracy and preparation to commit dacoity by some persons near Pillanna Garden. Summoning Cw.2/Nagajyothi, Cw.3/K.M.Chandru as panch witnesses, they went to the spot. In the presence of witnesses, they made their self search. They went to the spot at 7.15 by parking vehicle in a side. They got the information confirmed through PC.8002. When conducted raid, 6 accused persons got arrested. One person succeeded to ran away. When asked the name and address, arrested persons informed their names as accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha and informed the name of person ran away as accused No.7/Chethan. When enquired about their presence on the spot, they informed that they are prepared and attempting to commit robbery of the public. When they searched arrested persons, two knives, one rod, three wooden clubs found with them. Conducting 17 S.C.No.1429/2016 panchanama on the spot in the presence of panch witnesses, they seized all weapons/articles. Along with accused, seized articles, panchanama, they returned to the police station at 9.30 p.m., presented the same before the S.H.O. Cw.1 submitted report to register a case against them. Pw.4 identified panchanama at Ex.P.3 and his signature on Ex.P.3 is at Ex.P.3(c). Pw.4 identified articles at Mo.1 to 6. Pw.4 deposed that he can identify arrested accused persons. Pw.4 identified accused No.2 who was present before the court. Pw.4 further deposed that he had given statement to the investigating officer.
15.1) In the cross-examination Pw.4 admitted that place of incident is busy area. Pw.4 admitted that Angalaparameshwari temple always remain openrf. Public used to visit Angalaparameshwari temple. Public used to move on the spot of incident. Pw.4 admitted that, he was not caught accused No.2.
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S.C.No.1429/2016 15.2) Pw.4 denied the suggestion that neither he himself nor any other staff as stated by him in his examination-in chief was participated in raid, arrest, seizure. Pw.4 denied the suggestion that by calling accused to the police station against whom already a case was registered, this false case was registered. Pw.4 denied the suggestion that Ex.P.3 was not written on the spot. Pw.4 denied the suggestion that as stated by investigating officer, he is deposing false.
16. Pw.5/Cw.7/ Naseer Ullakhan is the then police constable at K.G.Halli police station. In his evidence, Pw.5 deposed that from 2015 to 2017, he served as P.C.No.8002 in K.G.Halli police station. On 29.5.2015 evening at 6.30 p.m., Cw.1/Srinivas had taken him along with other staff by informing that he got information about conspiracy and preparation to commit dacoity near Pillanna Garden. 19
S.C.No.1429/2016 Summoning Cw.2/Nagajyothi, Cw.3/K.M.Chandru as panch witnesses, they went to the spot. In the presence of witnesses, they made self search. They went to the spot at 7.15 park the vehicle in a side got the information confirmed through PC.8002. When conducted raid, 6 accused persons got arrested. One succeeded to ran away. When asked the name and address, arrested persons informed their names as accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha and informed the name of person ran away as accused No.7/Chethan. Arrested persons enquired about their presence on the spot, they informed that they are prepared and assembled to commit robbery of the passer. When they searched the arrested persons, two knives, one rod, three wooden clubs found with them. Conducting panchanama on the spot in the presence of panch witnesses, they seized all articles. Along 20 S.C.No.1429/2016 with accused, seized articles, panchanama, they returned to the police station at 9.30 p.m., presented before the S.H.O. Cw.1 submitted report to register a case against them. Pw.4 identified panchanama at Ex.P.3 and his signature on Ex.P.3 is at Ex.P.3(d). Pw.5 identified articles at Mo.1 to 6. Pw.5 deposed that he can identify arrested accused persons. Pw.5 identified accused No.2 who was present before the court. Pw.5 further deposed that he had given statement to the investigating officer.
16.1) In the cross-examination, Pw.5 admitted that place of incident is busy area. Pw.5 admitted that Angalaparameshwari temple always remain opened. Public use to visit Angalaparameshwari temple. Public use to move on the spot of incident. Pw.5 admitted that, he was not caught accused No.2.
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S.C.No.1429/2016 16.2) Pw.5 denied the suggestion that neither he himself nor any other as staff as stated by him in his examination-in chief went to spot to conduct raid and seized weapons from accused persons. Pw.5 denied the suggestion that by calling accused to the police station against whom already a case was registered, this false case was registered. Pw.5 denied the suggestion that Ex.P.3 was not written on the spot. Pw.5 denied the suggestion that as stated by investigating officer, he is deposing false.
17. Pw.6/Cw.4/ Srinivasamurthy is another P.C. served at K.G.Halli police station. In his evidence Pw.6 deposed that, in between 2017 and 2019, he served as P.C.No.9470 at K.G. Halli police station. On 29.5.2015 evening at 6.30 p.m., Cw.1/Srinivas had taken him along with other staff by informing that he got information about conspiracy and preparation to commit dacoity near Pillanna Garden. Summoning Cw.2/Nagajyothi, Cw.3/K.M.Chandru as 22 S.C.No.1429/2016 panch witnesses, they went to the spot. In the presence of witnesses, they made self search. They went to the spot at 7.15 park the vehicle in a side, got the information confirmed through PC.8002. When conducted raid, 6 accused persons got arrested. One succeeded to ran away. When asked the names as address, arrested persons informed their names accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha and informed the name of person ran away as accused No.7/Chethan. Arrested persons enquired about their presence on the spot, they informed that they are prepared and assembled to commit robbery of the passer. When they searched the arrested persons, two knives, one rod, three wooden clubs were found with them. Conducting panchanama on the spot in the presence of panch witnesses, they seized all articles. Along with accused, seized articles, panchanama, they 23 S.C.No.1429/2016 returned to the police station at 9.30 p.m., presented before the S.H.O. Cw.1 submitted report to register a case against them. Pw.6 identified panchanama at Ex.P.3 and his signature on Ex.P.3 is at Ex.P.3(e). Pw.6 identified articles at Mo.1 to 6. Pw.6 deposed that he can identify arrested accused persons. Pw.6 identified accused No.2 who was present before the court. Pw.6 further deposed that he had given statement to the investigating officer.
17.1) In the cross-examination Pw.6 admitted that place of incident is busy area. Pw.6 admitted that Angalaparameshwari temple always remain opened. Public use to visit Angalaparameshwari temple. Public use to move on the spot of incident. Pw.6 admitted that, he was not caught accused No.2.
17.2) Pw.6 denied the suggestion that neither he himself nor any other staff as stated by him in his examination-in chief went to the spot to conduct raid and 24 S.C.No.1429/2016 seized weapons from the accused persons. Pw.6 denied the suggestion that by calling accused to the police station against whom already a case was registered, this false case was registered. Pw.6 denied the suggestion that Ex.P.3 was not written on the spot. Pw.6 denied the suggestion that as stated by investigating officer, he is deposing false.
18. Pw.7/Cw.6/ Mohammed Rafee is the then P.C. at K.G.Halli police station. In his evidence, Pw.7 deposed that, from 2013 to 2016, he served as PC.No.9144 at K.G.Halli police station. On 29.5.2015 evening at 6.30 p.m., Cw.1/Srinivas had taken him along with other staff informing that he got information about conspiracy and preparation to commit dacoity near Pillanna Garden. Summoning Cw.2/Nagajyothi, Cw.3/K.M.Chandru as panch witnesses, they went to the spot. In the presence of witnesses, they made self search. They went to the spot at 7.15 park the vehicle in a side, got the information confirmed through 25 S.C.No.1429/2016 PC.8002. When conducted raid, 6 accused persons got arrested. One succeeded to ran away. When asked the name and address, arrested persons informed their names as accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha and informed the name of person ran away as accused No.7/Chethan. Arrested persons enquired about their presence on the spot. They informed that they are prepared and assembled to commit robbery of the passer. When they searched arrested persons, two knives, one rod, three wooden clubs were found with them. Conducting panchanama on the spot in the presence of panch witnesses, they seized all articles. Along with accused, seized articles, panchanama, they returned to the police station at 9.30 p.m., presented before the S.H.O. Cw.1 submitted report to register a case against them. Pw.7 identified panchanama at Ex.P.3 and his signature on 26 S.C.No.1429/2016 Ex.P.3 is at Ex.P.3(f). Pw.7 identified articles at Mo.1 to 6. Pw.7 deposed that he can identify arrested accused persons. Pw.7 identified accused No.2 who was present before the court. Pw.7 further deposed that he had given statement to the investigating officer.
18.1) In the cross-examination Pw.7 admitted that place of incident is busy area. Pw.7 admitted that Angalaparameshwari temple always remain opened. Public use to visit Angalaparameshwari temple. Public use to move on the spot of incident. Pw.7 admitted that, he was not caught accused No.2.
18.2) Pw.7 denied the suggestion that neither he himself nor any other one of the staff stated by him in his examination-in chief went to the spot to conduct raid and seized weapons from the accused persons. Pw.7 denied the suggestion that by calling accused to the police station 27 S.C.No.1429/2016 against whom already a case was registered, this false case was registered. Pw.7 denied the suggestion that Ex.P.3 was not written on the spot. Pw.7 denied the suggestion that as stated by investigating officer, he is deposing false.
19. Pw.8/Cw.5/ Chand Sab is another police constable served at K.G.Halli police station. In his evidence Pw.8 deposed that, from 2012 till today he is serving as PC.No.12614 at K.G.Halli police station. On 29.5.2015 evening at 6.30 p.m., Cw.1/Srinivas had taken him along with other staff by informing that he got information about conspiracy and preparation to commit dacoity near Pillanna Garden. Summoning Cw.2/Nagajyothi, Cw.3/K.M.Chandru as panch witnesses, they went to the spot. In the presence of witnesses, they made self search. They went to the spot at 7.15 parked the vehicle in a side, got the information confirmed through PC.8002. When conducted raid, 6 accused persons got arrested. One succeeded to rant away. 28
S.C.No.1429/2016 When asked the name and address, arrested persons informed their names as accused No.1/Thabrez, accused No.2/Irfan Ulla, accused No.3/Syed Jabee, accused No.4/Sheik Maksood, accused No.5/ Shabbeer Khan, accused No.6/Chand Pasha and informed the name of person ran away as accused No.7/Chethan. When enquired the arrested persons about their presence on the spot, they informed that they are prepared and assembled to commit robbery of the public. When they searched arrested persons, two knives, one rod, three wooden clubs were found with them. Conducting panchanama on the spot in the presence of panch witnesses, they seized all articles. Along with accused, seized articles, panchanama, they returned to the police station at 9.30 p.m., presented before the Station House Officer. Cw.1 submitted report to register a case against them. Pw.8 identified panchanama at Ex.P.3 and his signature on Ex.P.3 is at Ex.P.3(g). Pw.8 identified articles at Mo.1 to 6. Pw.8 deposed that he can 29 S.C.No.1429/2016 identify arrested accused persons. Pw.8 identified accused No.2 who was present before the court. Pw.8 further deposed that he had given statement to the investigating officer.
19.1) In the cross-examination Pw.8 admitted that place of incident is busy area. Pw.8 admitted that Angalaparameshwari temple always remain opened. Public used to visit Angalaparameshwari temple. Public used to move on the spot of incident. Pw.8 admitted that, he was not caught accused No.2.
19.2) Pw.8 denied the suggestion that neither he himself nor any other one of the staff, as stated by him in his examination-in chief went to spot to conduct raid, and seized weapons from accused persons. Pw.8 denied the suggestion that by calling accused to the police station against whom already a case was registered, this false case was registered. Pw.8 denied the suggestion that Ex.P.3 was 30 S.C.No.1429/2016 not written on the spot. Pw.8 denied the suggestion that as stated by investigating officer, he is deposing false.
20. Ex.P.1 is Report, Ex.P.2 is F.I.R., Ex.P.3 is panchanama, Ex.P.4 to Ex.P.9 are voluntary statements of accused No.1 to 6 and Ex.P.10 is statement of Pw.2.
21. Advocate for the accused submitted that a false case was registered by the complainant police against the accused persons for statistical purpose. No arrest or seizure was made as stated in the evidence adduced by prosecution side. No panchanama witnesses supported the case of the prosecution. There are reasonable doubts on the case of prosecution. For the said reasons advocate for accused prayed to acquit the accused persons.
22. Learned public prosecutor appearing for the State submitted that evidence adduced by the prosecution is sufficient to prove ingredients of charges 31 S.C.No.1429/2016 framed against the accused persons. No satisfactory explanation is forthcoming in the cross-examination of prosecution witnesses by the accused side for what reason, witnesses examined on behalf of prosecution deposed against accused persons. In the statement U/s.313 of Cr.P.C. also accused persons had not given any explanation about incriminating evidence deposed by the witnesses against them. For the said reasons, learned Public Prosecutor appearing for the State prayed to convict the accused persons.
23. Before applying the evidence adduced by the prosecution to examine whether ingredients of the charges framed against accused persons are proved beyond reasonable doubt, it is just and necessary to consider the nature of allegations against the accused persons. Case is registered against accused No.1 to 7 for offences punishable 32 S.C.No.1429/2016 U/s.399 and 402 of I.P.C. Charge sheet was filed for the same offences charges are also framed.
24. Section 399 of I.P.C. states as under;
399. Making preparation to commit dacoity.
--Whoever makes, any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
25. Section 402 of I.P.C. states as under;
402. Assembling for purpose of committing dacoity. --Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
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26. These two offences U/s. 399 and 402 of I.P.C.are in the preparation stage of dacoity. Definition of offence dacoity U/s.391 of I.P.C. states as under;
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 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".
26.1) To prove the ingredients of dacoity offence of robbery has to be proved. Definition of robbery given in section 390 of I.P.C. states as under;
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.-- Theft is "robbery" if, in order to the committing of the theft, or in committing the 34 S.C.No.1429/2016 theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery. 26.2) To prove ingredients of Section 399 and 402 of I.P.C., prosecution has to prove that the accused persons made preparation for committing dacoity, assembled for the purpose of committing dacoity. To prove the offences, preparation for committing dacoity and accused persons assembled on the spot to commit dacoit are important facts to be proved by the prosecution. To consider whether prosecution succeeded to prove the aforesaid facts, we have to consider the evidence available on record on behalf of the prosecution.
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27. Pw.1, Pw.3 to Pw.8 police staff and police officers deposed about receiving credible information of assembling by some persons near Pillanna Garden armed with deadly weapons to commit robbery. Based on the said information Pw.1, Pw.3 to Pw.8 conducted raid, arrested accused No.1 to 6 and seized Mo.1 to Mo.6 under the cover of seizure panchanama Ex.P.3. Ex.P.3 seizure panchanama containing signatures of Pw.1 and Pw.3 to Pw.8. Except panch witness Pw.2, all other witnesses examined on behalf of prosecution deposed corroborating with the ingredients of seizure panchanama Ex.P.3. Pw.1, Pw.3 to Pw.8 identified accused No.2 who was present before the court. Further deposed that they can identify other accused person arrested by the Pw.2 and identified Mo.1 to 6 under the cover of Ex.P.3/ panchanama from the possession of accused persons No.1 to 6.
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28. Defence set up by the accused is that a false case is registered for statistical purpose. Except mere suggestion, accused side not elicited any admissions to show that, Pw.1, Pw.3 to 8 deposing false against accused persons. Statements recorded by the investigating officer is also corroborating with the evidence adduced by Pw.3 to 8.
29. Fact to be taken into consideration is that absence of any corroborating proof to show that accused persons in this case made an attempt to commit robbery. Admittedly there is no complaint by public against accused persons about incident of attempt to commit robbery. Further out of two panchanama witnesses, examined Pw.2 also not supported the ingredients of Ex.P.3, raid panchanama. Another panch witnesses Cw.2 not called by the prosecution for examination before the court. 37
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30. Relying upon the evidence adduced by police officers is not prohibited under evidence. It is settled position of law that case of the prosecution cannot be doubted merely because witness examined before the court on behalf of the prosecution are only official witnesses. Further, it is necessary to take into consideration that in support of seizure of Mo.1 to 6 from the possession of accused persons under the covered of Ex.P.3, no electric evidence like photograph or videograph of recording of C.C.Camena footages are produced by the prosecution before the court. When panch witnesses refused to support the version of the prosecution, availability of electronic evidence play an important role to prove the case of the prosecution. Hence, it is just and necessary and useful for the investigation to rely upon electronic evidence to prove their case instead of relying upon the versions of witnesses recorded by way of statements U/s.161 and 162 of Cr.P.C. 38
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31. In the judgment reported in the case of Gaddeppa V/s. State of Karnataka Hon'ble High Court of Karnataka held as under;
"Penal Code, 1860, Section 399- Preparation for committing dacoity- Nothing elicited as to for what purpose accused persons gathered there, whether there was any attempt done by them in order to commit dacoity- Not shown that they had actually stopped any vehicle and any owner or the driver of the vehicle complained that they had made any attempt to commit dacoity- Mere recovery of some articles and also non- explanation of the accused as to why they had gathered in that particular place is not sufficient to fill up the gap on side of the prosecution to prove that accused were actually gathered there for purpose of committing dacoity- Except presence of the accused persons at the spot, recovery of some articles and voluntary statement of the accused, no other material to show that they 39 S.C.No.1429/2016 were gathered there for the purpose of committing dacoity- Mere suspicion or imagination by the police officer bereft of any other material is not sufficient to draw a conclusive inference that, accused persons were gathered there for purpose of committing dacoity- prosecution failed to prove the guilt of accused - Accused acquitted."
32. In this case on hand, there are certain crucial infirmities which goes to the root of the case of the prosecution. Firstly, no independent panch witnesses examined in support of case of the prosecution. Secondly, there are discrepancies in the evidence adduced by police officer, who participated in the raid. Seizure of articles not supported by any electronic evidence like photography or videography, to corroborate the circumstances of seizure of material objects on the spot, under the cover of seizure panchanama. On the whole, seizure is not clear and reliable to prove ingredients of the offences punishable U/s.399 and 40 S.C.No.1429/2016 402 of I.P.C. Proof of seizure of articles like deadly weapons from the possession of the accused is utmost necessary which is not proved in this case.
33. Further, place of seizure is a public place, having public movement. No special identification mark affixed on the weapons said to be recovered from the accused persons to identify them before court, during trial.
34. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution failed to prove beyond all reasonable doubt that, on 29.5.2015 at about 7.30 p.m., near Angalaparameshwari Temple, and burial ground, situated at Pillanna Garden 3rd stage, within the jurisdiction of Kadugondanahalli police station, accused No.2 along with other accused assembled armed with two knives, one iron rod 3 wooden clubs, prepared for commission of dacoity, assembled to rob passers thereby accused No.2 has committed offences punishable U/s.399 41 S.C.No.1429/2016 and 402 of I.P.C. Accordingly, points No.1 and 2 are answered in the Negative.
35. POINT NO.3: In view of the above findings on points No.1 and 2, accused No.2 is entitled for acquittal. Hence, the following order is made;
ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.2 is hereby acquitted for offences punishable U/s.399 and 402 of I.P.C.
Accused No.2 is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
Office is directed to take personal bond of accused No.2 for Rs.1,00,000/- (one lakh) as per Section 437-A of Cr.P.C.
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S.C.No.1429/2016 This entire file and material objects shall be preserved till conclusion of trial against split up accused.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 7th day of September 2020.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Raheem
Pw.2 Chandru
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Pw.3 Shaju Anthoni
Pw.4 Khajanijamuddin
Pw.5 Naseer Ulla Khan
Pw.6 Srinivas Murthy
Pw.7 Mohammed Rafee
Pw.8 Chand Sab
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Report
Ex.P.1(a) Signature of Pw.1
Ex.P.2 F.I.R.
Ex.P.2(a) Signature of Pw.1
Ex.P.3 Panchanama
Ex.P.3(a to g) Signatures
Ex.P.4 to Ex.P.9 Voluntary statements of accused
No.1 to 6.
Ex.P.10 Statement of Pw.2
IV. For Defence side:-
-Nil-
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V. List of material objects marked:-
Mo.1 One Knife
Mo.2 One iron rod
Mo.3 Wooden club
Mo.4 Another knife
Mo.5 & Mo.6 Two wooden clubs.
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 45 S.C.No.1429/2016 7.9.2020 Accused absent.
Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.2 is hereby acquitted for offences punishable U/s.399 and 402 of I.P.C.
Accused No.2 is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
Office is directed to take personal bond of accused No.2 for Rs.1,00,000/- (one lakh) as per Section 437-A of Cr.P.C.
This entire file and material objects shall be preserved till conclusion of trial against split up accused.
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S.C.No.1429/2016 Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.
To execute bond as per Section 437-A of Cr.P.C., call on 14.9.2020.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.