1 SC.No.

513/2018

KABC010086432018

IN THE COURT OF THE LIX ADDL.CITY CIVIL

& SESSIONS JUDGE, BANGALORE CITY (CCH-60)

Dated this the 6th day of April 2023

PRESENT
*********
Sri Sadananda Nagappa Naik, B.A.L.,
LL.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.

S.C.No.513/2018

COMPLAINANT: State by
Madiwal Police Station,
Bangalore.

(Represented by Learned Public

Prosecutor, Bangalore.

Vs.

ACCUSED No: A1. Mahendra,

S/o. Daararam,
Aged about 26 years,
Resident of Gavipuram
Guttahalli, Near Dobighat,
Bengaluru.
2 SC.No. 513/2018

Permanent resident of
Jeetharam Village and Police
Station,
Pali District, Rajastan.

A2. Deepu Bahaddur Bora,

S/o. Jeeth Bahaddur Bora,
Aged about 28 years,
Resident of 8th Cross,
Hosapalya, HSR Layout,
Madiwala, Bengaluru.
Permanent resident of
Jampti Village, Jobada
Taluk, Dadardula,
Mahakali Anchal, Nepala.

A3. Mohan @ Ajar,

S/o. Late Panduranga,
Aged about 27 years,
Resident of 3rd Cross,
S.G.Palya, Tavarekere Main
Road, Bengaluru.

A5. Jalal @ Jalal Pasha,

S/o. Ameer Jan,
Aged about 25 years,
Residing at No.9, Ayuda
Das Nagar, 1st Cross,
Devarajeevanahalli,
Bengaluru North Taluk.
(Accused No.1 to 3 and 5 are in JC)

(For A-1, 2 and 5 Sri. H.R.Krishna

advocate and for A3- Sri. Younus Ali
Khan and Associates Advocates)
 3 SC.No. 513/2018

1. Date of Commission : 07.11.2014

of Offence

2. Date of Report : 07.11.2014

of Offence

3. Status of the accused : Accused No.1 to 3 and 5

are on bail

4. Name of the complainant : Sri. H.P.Nanjunadaiah PSI,

Madiwal PS,
Bengaluru.

5. Date of Commencement :
of evidence 07.12.2022

6. Date of Closing of :
28.03.2023
Evidence

7. Offences complained of : Sections 399 and 402 of

I.P.C.

8. Opinion of the Judge : Accused No.1 to 3 and 5

are not found guilty
JUDGMENT

The Police Inspector of Madiwal Police Station,

Bengaluru, has filed the charge-sheet in C.C.No. 1231/2015

against the accused Nos.1 to 7 for the offences punishable

under Sections 399 and 402 of I.P.C.

2. The case of the prosecution in brief is that, on

07.11.2014, at about 9.10 pm, Accused No.1 to 3 and 5 along

 4 SC.No. 513/2018

with Accused No.4, 6 and 7 near Madiwala lake, 38 th Main,

K.A.S. Layout, Bengaluru, were assembled and found making

preparation to commit dacoity on the public who were

passing with their vehicles on such road by keeping deadly

weapons and thereby accused persons have committed the

offence punishable under Sections 399 and 402 of IPC.

3. The learned Magistrate committed the case to

the Principal City Civil and Sessions Judge in C.C.

No.1231/2015 after split up of case against Accused No.6

and 7 and in turn, the said case is assigned to this court for

disposal in accordance with law. Accused No.1 to 5 were on

bail at the time of committal. After committal, summons

was issued to Accused No.1 to 5. Later Accused No.4 was

not secured inspite of issuance of NBW, case against

accused No.4 was split up against him as per order dated

09.03.2022. As such case against accused No.1 to 3 and 5

only continued in this case. The Accused No.1 to 3 and 5

pleaded not guilty and claimed to be tried.

 5 SC.No. 513/2018

4. In order to prove the guilt of accused No.1 to 3

and 5, the prosecution was able to examine three witnesses

as PW.1 to PW.3 and got marked the documents at Ex.P.1 to

P.4 and Material Objects at MOs.1 to 4. The prosecution was

not able to examine other witnesses in spite of sufficient

opportunity. The Accused No.1 to 3 and 5 have been

examined under Section 313 of Cr.P.C. They have not

adduced evidence in their defence.

5. Heard arguments of both sides and perused the

records.

6. Having regard to the materials placed on record

and the submissions made by both the parties, the point

that arise for my consideration is:

“Whether the prosecution proves beyond all

reasonable doubt that the Accused No.1 to
3 and 5 along with split-up accused No.4, 6
and 7 on 07.11.2014, at about 9.10 pm,
had assembled near Madiwala lake, 38 th
Main, K.A.S. Layout, Bengaluru,and making
 6 SC.No. 513/2018

preparation to commit dacoity by holding

deadly weapons and thereby the accused
No.1 to 3 and 5 along with split-up accused
Nos.4, 6 and 7 have committed the offence
punishable under Section 399 and 402 of
IPC?”

7. My findings to the above point in the Negative

for the following:-

REASONS

8. The first informant and the panch witnesses are

the material witnesses to prove the assembly and

preparation to commit dacoity by the accused No.1 to 3 and

5 along with split-up accused Nos.4, 6 and 7. PW-2/CW-1

H.P.Nanjunadaiah, PSI is the first informant who has

conducted raid, PW-1/CW-6 Salim Pasha, PC is the staff who

had participated in raid along with PW-2, and PW-3/CW-10

Muralidhar.D is the PSI who registered FIR, conducted

investigation and filed charge sheet.

 7 SC.No. 513/2018

9. PW-2/CW-1 H.P.Nanjunadaiah, PSI and PW-1/CW-6

Salim Pasha, PC in their evidence have deposed that on

07.11.2014, when CW-1 was at Police Station, he has

received credible information that at 38th Cross, KAS

Layout, around 6-7 persons are planning to commit dacoity

by holding deadly weapons. Thereafter, CW-1 have secured

two panchas CW-2, 3 to the Police Station and also secured

CW-5 to 9 and informed the information to them and

requested panchas to act as panchas and they admitted to

act as panchas. Thereafter, they left the Police Station at

9.30 pm and reached the spot at about 10.00 pm in their

Hoysala Vehicle. They watched the 6-7 persons and heard

the conversation among them regarding planning to commit

dacoity. After confirming the information, they raided 7

persons, at that time, they caught hold of 3 persons and 4

persons ran away from the spot. CW-1 and CW-9 have

caught hold of accused No.1 and he had knife in his

possession. CW-5 and 6 have caught hold of accused No.2

and he had iron rod in his possession. CW-7, 8 have caught

 8 SC.No. 513/2018

hold of accused No.3 and he had wooden club and chilly

powder packet in his possession. There was also one Pulsar

bike bearing Reg.No.KA-01-EZ-1868. Accused No.1 to 3

revealed the name of accused No.4 to 7, who ran away from

the spot. CW-1 has conducted spot panachanama and

seized material objects in the white cloth in the presence of

panchas from 10.00 pm., to 11.00 pm. They took accused

No.1 to 3 along with mahazar and material objects to Police

Station and reported the same to CW-10-Muralidhar, PI and

handed over the accused No.1 to 3, mahazar and material

objects to him. On the same day, CW-1 has received further

investigation from CW-10 and recorded the statement of

CW-2 and 3 and handed over further investigation to CW-10.

PW.1 and 3 are cross-examined by the advocate for accused

No.1 to 3 and 5. But the evidence of PW.3 is not shaken in

the cross- examination.

10. PW-3/CW-10 Muralidhar.D, PSI. Madiwal Police

Station, Bengaluru has deposed in his evidence that on

07.11.2014, when he was at the Police Station, at about

 9 SC.No. 513/2018

11.30 pm., CW-1 came to Police Station and produced

accused No.1 to 3, mahazar and material objects along with

his report. Based on the report, he has registered a case in

crime No.1558/2014 for the offence punishable u/s 399 and

402 of IPC and submitted the FIR to jurisdictional Magistrate

Court. He has reported material objects in PF No.322/2014.

He has arrested accused No.1 to 3 and recorded their

voluntary statements. He has recorded the statements of

CW-5 to 9. He has produced accused No.1 to 3 before

jurisdictional Magistrate Court along with requisition for

judicial custody. On 25.11.2014, he has released the Bajaj

Pulsar vehicle bearing Reg.No.KA-01- EZ-1868 to CW-4 as

per the order of the Court. He has recorded the statement

of CW-4. On 12.01.2015, he has filed charge sheet against

accused No.1 to 3 and showing accused No.4 to 7 as

absconding accused persons. The evidence of this witness

remained unshaken and this witness denied the suggestion

that he is deposing falsely on the instructions of his higher

authority.
 10 SC.No. 513/2018

11. This is all about the evidence of prosecution

witnesses placed before the court. The prosecution has

failed to secure panch witnesses inspite of issuance of

witness summons, warrant and proclamation. The evidence

available before the court is only the evidence of police

witnesses i.e., PWs.1 to 3. Since the accused No.1 to 3 and

5 has denied statements of PW.1 to 3, in order to believe

the statement of the Police witnesses, the evidence of

panch witnesses is necessary. Such evidence creates doubt

about the statement made by PWs.1 to 3. It is the settled

principle of law that mere presence of 5 or more persons,

even if armed with weapons, will not automatically make

out an offence either under section 399 or under Section

402 of IPC, unless there was cogent and convincing

evidence on record to effect that the accused persons have

assembled in the alleged manner for the preparation to

commit dacoity or robbery. There is no evidence of any

panch witness on record to show that the Investigating

Officer or any other official witness have overheard the

 11 SC.No. 513/2018

conversation among the accused persons from which could

be inferred that the accused No.1 to 3 and 5 along with

split-up accused Nos.4, 6 and 7 were making preparation to

commit dacoity. Thus, by giving benefit of doubt, the

Accused No.1 to 3 and 5 have to be acquitted for insufficient

evidence. For these reasons, I hold that the prosecution

failed to prove the guilt of accused No.1 to 3 and 5 for the

offence under Sections 399 and 402 of IPC. Accordingly, I

answer the above point in the Negative and proceed to pass

the following:-

ORDER

Acting under Section 235(1) of Cr.P.C.,

the accused No.1 to 3 and 5 is acquitted

for the offences punishable under

Sections 399 and 402 of IPC.

The bail bond and surety bond of

accused No.1 to 3 and 5 shall stand

cancelled.
 12 SC.No. 513/2018

The properties seized in this case at

MOs.1 to 3 are ordered to be retained as

split up case against other accused

persons is pending.

(Dictated to the Judgment-writer directly on Monitor, typed

by her, corrected, signed and then pronounced by me in the
open court on this the 6th day of April, 2023).

(Sadananda Nagappa Naik)

LIX Addl. City Civil & Sessions Judge,
Bengaluru.

ANNEXURE

LIST OF WITNESSES EXAMINED FOR PROSECUTION:

P.W.1 Salim Pasha, PC

PW.2 H.P.Nanjunadaiah PSI
PW-3 Muralidhar.D, PSI

LIST OF WITNESSES EXAMINED FOR DEFENCE: -

NIL

LIST OF DOCUMENTS MARKED FOR PROSECUTION:

Ex.P.1 Photograph of pulser bike

Ex.P.2 Report
Ex.P.2(a) Signature of PW.2
Ex.P.2(b) Signature of PW.3
 13 SC.No. 513/2018

Ex.P.3 Mahazar
Ex.P.3(a) Signature of PW-2
Ex.P.4 FIR
ExP 4(a) Signature of PW-3

LIST OF DOCUMENTS MARKED FOR DEFENCE:- NIL

LIST OF MATERIAL OBJECTS MARKED :-

M.O.1 Knife
M.O.2 Iron Rod
M.O.3 Chilly Powder
M.O.4 Wooden club

(Sadananda Nagappa Naik)

LIX Addl. City Civil & Sessions Judge,
Bengaluru.
 14 SC.No. 513/2018

06.04.2023.
Accused No.1 to 3 and 5 are
present.

Judgment pronounced in the open court

(vide separate judgment)

ORDER

Acting under Section 235(1) of Cr.P.C., the

accused No.1 to 3 and 5 is acquitted for the

offences punishable under Sections 399 and

402 of IPC.

The bail bond and surety bond of accused

No.1 to 3 and 5 shall stand cancelled.

The properties seized in this case at MOs.1

to 3 are ordered to be retained as split up case

against other accused persons is pending.

(Sadananda Nagappa Naik)

LIX Addl. City Civil & Sessions Judge,
Bengaluru.
1 SC.No. 513/2018