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KAUK IN THE COURT OF THE CIVIL JUDGE & JMFC, DANDELI Present: Smt. ROHINI D BASAPUR, L.L.M ., Civil Judge & JMFC, Dandeli C.C. No 1266/2009 & 338/ Dated this the 21 st day of November- Complainant :- State by Dandeli Town PS (Represented by APP) V/s., Accused :- 1. Deepak S/o Surati Gagade Age about: 20 years, Occ: Spare Business R/o: Kanjarbhat, Gandhi Nagar, Dandeli.
- Kalu S/o Pappu Juriya Aged about 24 years, R/at Jaraa Nagar, Near Railway Patti Ahmednagar, Gujarat (Represented by Sri.V.R.H, Advocate ) Date of offence 1.09. Date of report 02.09.
Date of arrest of accused 16.06. Whether in custody No Name of First informant Smt.Rekha w/o Vinayak Naik Offences alleged U/Section 392 and 420 of IPC Evidence commenced on 20.12. Evidence closed on 01.02. Judgment pronounced on 21.11. Opinion of Presiding Officer Accused persons are held guilty. (Rohini D Basapur) Civil Judge & JMFC, Dandeli The CPI, Dandeli has filed the Chargesheet against accused persons for the offences punishable U/Section 392 and 420 of Indian Penal Code, 1860 (herein after referred as IPC for brevity). J U D G M E N T
1. The present prosecution against the accused persons emanates out of an allegation that, on 01.09.2009 at about 7.30.pm when CW. along with her children were going on Vanashree Nagar Road on their
accusation leveled against them. They pleaded not guilty and claimed to be tried in their respective cases. Hence, case was posted for trial. ] 3. In the trial, to substantiate it’s case, 14 witnesses were examined by the prosecution as PW.1 to 14, and got marked the documents Ex.P1 to P13. M.O.1 and 2 were marked in both the cases. 4. During the course of recording statement U/sec. 313 Cr.P.C. the accused persons denied the incriminating evidence against them and did not choose to lead defence evidence. And after hearing the arguments of both the sides, this court had clubbed both the cases to avoid conflict of judgments. On the basis of the evidence the following points arise for my consideration. POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, on 01.09.2009 at about 6.00 p.m at Vanashree Nagar Road near Bombo gate, J.N Road Dandeli, the accused persons in furtherance of common intention committed theft of golden Mangalsutra and in committing theft
voluntarily caused instant wrongful restraint and thereby committed offence punishable under Section 392 r/w 34 of the Indian Penal code and within my cognizance.
2. Whether the prosecution proves beyond all reasonable doubt that, accused persons on the above said date, time and place, the accused persons in furtherance of common intention cheated CW.1 by dishonestly inducing her to believe that the M80 bike bearing No.KA-31H-5848 to be KA-22H- 5991 and to deliver her Mangalsutra thereby committed the offence of cheating punishable under Section 420 r/w 34 of the Penal Code and within my cognizance? 3. What order? 5. Heard the arguments and perused the evidence both oral and documentary. My findings to the points are as under; Point No.1 : "Affirmative" Point No.2 : "Affirmative" Point No.3 : As per final order for the following:
8. The witnesses examined on behalf of prosecution are as under P.W.1 is the complainant, P.W.2 and 3 are the witnesses to spot panchanama. P.W.5 and 13 are the witnesses to seizer Panchanama; P.W.4 and 8 are chance and res gestae witnesses. P.W.6 is an expert witness (goldsmith); P.W.7 is a witness to identification of Accused. P.W.9 has issued sketch of the crime scene; P.W.10 is the Investigation Officer; P.W.11 is a witness who had drove the car during recovery; P.W.12 is the owner of the vehicle used by the Accused persons; P.W.14 is the son of complainant an eye witness. The essential ingredients for the offence of robbery are: 1. That accused in order of committing theft; or In committing theft; or In carrying away or attempt to carry away the property obtained by the theft, 2. Voluntarily causes or attempt to cause to that person or to any person death, hurt or wrongful restraint or of instant death, hurt or wrongful restraint.
9. Keeping this in mind, as per the say of the prosecution they have to prove that, there has been theft of Mangalsutra of CW.1 by wrongfully restraining her.
10. To inspect into the evidence adduced by the prosecution, the first informant (P.W.1) in her chief examination has deposed in consonance with Exhibit P.1 i.e.,first information statement. From perusal of the Exhibit P.1, she has given the description of the accused persons. She has identified the accused before the court. Though no test identification parade has been conducted, the uninterested testimony of her with respect to identification of accused cannot be disbelieved. 11. It is observed that the incident occurred on 01.09.2009 at 6.pm, but the first information was given at Police station on the next day i.e., on 02.09.2009. In Exhibit P.1 the first informant has stated that as her husband was not at home on the day of offence she informed on
Ex.P.1. It is to be noted here that the place of incidence plays a vital role. With regard to which the sketch at Ex.P.5 has also been produced to the court. And so it is not necessary to mention the path she had taken to reach the place of incidence in Ex.P.1, first information statement.
13. Further, she has disclosed in the cross examination that the accused persons had passed beside her on bike for about 200 meters, proceeded towards a road on the right side and returned back, which she could not mention exactly in her complaint. From perusal of Exhibit P.1, she has only stated that the accused persons had passed beside her to a distance and returned back. This is a minor discrepancy which do not go to the root of the case. 14. P.W.1 has also stated that no beads (Karimani) were fallen on the ground at scene of alleged offence. Perusal of the Ex P.6 and P. viz., Photos of Mangalsutra, show that it is dominated by gold chain.
The beads are less and are tightly secured in the chain. And at the cuts occurred at the time of snatching, there are no beads. Hence, the chances of the beads falling on the ground are less. She has identified the stolen Mangalsutra. But has stated in her cross examination that, she has not produced the receipt of purchase of the Mangalsutra. It is normal that a person may not a preserve all the receipts of purchase for long time apprehending the mishappenings. Her identification of the property itself is credible.
15. Continuing to the evidence of P.W.2 and 3, who are spot Panchanama witnesses have turned completely hostile to the prosecution. 16. P.W.4 who is a chance and res gestae witness has deposed that on 01.09.2009 when he was returning to home closing his business shop, he heard a sound of a lady shouting behind Patil Hospital, her chain has been snatched by two people who eloped on bike. He took
deposed that he personally had went inside the house of the accused. But he does not know as to how many rooms were in the house and the measurement of the house from which the M.O’s were recovered. Here the significance of this witness is just to examine whether the stolen object was recovered in consequence of information received from accused. He has further stated that it was about 5.30 pm, when he was called by the police. Perusal of the Ex.P.2, seizer panchanama shows that they had left to the house of Accused after 5.30 pm. P.W.13 is an another seizer witness who has turned hostile to the case of prosecution.
18. In a case of theft or robbery, the recovery of the stolen article and it’s nexus with the accused plays a crucial role. Section 25 of Indian Evidence Act states, “ No confession made to a police officer, shall be proved as against a person accused of any offence.” Whereas Section 27 of Indian Evidence Act is an exception to it. Which reads, “ When any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
19. In the present case on hand, P.W.5 has stated that the above said objects were discovered in consequence of information received from Accused No.2. Hence the said portion of the accused at Exhibit P.12 i.e., confession statement is admissible in evidence. As per Section 114 of Indian Evidence Act, Court may presume existence of certain facts which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume— (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
about 15 to 20 mints to reach the house of accused from police station.
22. P.W.9 is an Assistant Engineer in PWD. He has prepared and issued sketch of the place of incident as shown by PC by name Suresh Shivaji Ghatge on 24.10.2009 as per Ex.P.5. He has not been cross examined. 23. P.W.14 is the son of P.W.1 who has stated in his chief examination that on 01.09.2009 at about 7.30.pm, when PW.1 i.e., his mother, alongwith him and his brother were returning to their home from Durgadevi Temple which is located near Bamboo Gate, J.N Road, via Vanashree Nagar road, when they reached Garden near 14 th block, some two youngsters came from behind on Bajaj M80 Motor Cycle, rode past P.W.1 and again returned back towards P.W.1. Then the pillion rider snatched her gold Mangalsutra forcibly and both managed to escape towards Dandeli Town. Further the Accused
persons had manipulated the registration number of the bike from KA- 31 H-5848 to KA-22 H-5991. He has identified the accused persons. He has been cross examined in the line of P.W.1. Though he is an interested witness, being the son of CW.1, there is corroboration of other independent witnesses. Hence, the evidence of this witness can be accepted.
24. P.W.10 took up the investigation. He visited the scene place and conducted spot Mahazar and took photos in the presence of CW.2 and
- recorded the re statement of CW.1 and statements of CW.6 to 10. Arrested the Accused and recovered the stolen Mangalsutra. Seized MO.1 and 2 under seizer Panchanama at Ex.P.4. Got weighed the Mangalsutra and recorded the statement of CW.11. Obtained the sketch of the spot at Ex.P.13. After the completion of investigation he has filed the chargesheet against the Accused persons. No irregularities have been brought out from the cross examination.
prosecution has examined P.W.12 who was deposed in his evidence that he had sold his bike to one of his known persons. But he does not known his name. After which he had signed the document for transferring ownership. Further he has failed to identified the bike at MO.2. Moreover, there is no deception or inducement as such upon CW.1 so as to believe something to be true and in the result, to voluntarily deliver her Mangalsutra. Instead there is a forceful snatching of her chain. Hence there is absolutely no any cogent evidence adduced to attract offcence under Section 420 of IPC. For the foregoing discussions, I answer point No.2 in the Negative.
27. Point No.3: Hence, this court proceeds to pass the following; ORDER Acting under section 248(1) Cr.P.C., accused No.1 and 2 are hereby acquitted for the offence punishable U/S under Section 420 of Indian Penal Code 1860.
Acting under section 248(2) Cr.P.C., accused No. 1 and 2 are hereby convicted for the offence punishable U/S under Section 392 of Indian Penal Code 1860. The bail bonds and surety bonds of Accused No.1 and 2 stand cancelled. However, the bonds executed by the accused No.1 and 2 their surety in compliance to Sec.437-A of Cr.P.C. shall remain in force for a period of six months from the date of its execution. (Dictated to the Stenographer directly on computer, typed by him, corrected, signed and then pronounced by me in the open court this 21 th day of November 2022) (Rohini D Basapur) Civil Judge & JMFC, Dandeli
