STATE BY ATTIBELE POLICE Vs. GOPALA @ GOPALAGOWDA AND ANOTHER

JUDGEMENT

(1.) THE State has preferred this appeal challenging the judgment and order of acquittal of respondents/accused of the offence punishable under Section 395 of IPC.

(2.) THE respondents/accused came to be tried on the charge for the offence punishable under Section 395 of IPC. It is alleged that respondents/accused, who are A1, A3 and A5, along with four others on 30.6.2007 at about 11.00 a.m. near Attibele check post committed robbery of copper scrap weighing 11.110 kgs total worth Rs. 48,88,468 belonging to PW1 -Sachin Kumar from the lorry bearing No. KA22 -4587 by putting fear of instant death to PW2 -Nagaraj and thereby have committed the aforesaid offences. It is the case of the prosecution, PW1 is carrying on scrap business under the name and style M.S. Metal and Steel Pvt. Ltd. Bangalore. He owns a godown bearing No. 62 situated in Timber Yard Layout, Mysore Road, Bangalore. It is the case of the prosecution on 30.6.2007 PW1 had taken the lorry bearing No. KA22 -4587 from Laxmi Roadlines situated at Chamarajpet on hire and in the said lorry loaded 11.110 kgs of copper scrap to be transported to M/s. Shakthi Auto Company at Erode. The said lorry was driven by PW3 -Nagaraju along with his son PW2 as cleaner. The lorry left to Erode at about 9.45 p.m. When the said lorry reached Attibele checkpost at about 11.00 p.m., PW3 -driver of the lorry stopped the same, went to the check post in order to get the seals of the department to be affixed on the invoice of the goods transported in the lorry leaving PW2 -cleaner in the lorry. After he left to the check post, two persons came near the lorry, one among them entered the lorry from the right side i.e. from the steering wheel side. The other entered from the left side of the lorry. The person who entered the lorry from the left side held PW2 at the knife point and threatened him not to raise cries. Thereafter the lorry was driven by the other person from the check post. After they passed the check post they drove the lorry to the Eucalyptus Grove situated at Sarjapur by which time 8 more persons had followed the said lorry in a motor cycle and also in two other lorries bearing Nos. KA0 1 -557 and KA05 -7259. After the lorry was taken to the Eucalyptus Grove, the accused persons shifted the copper scrap which was in the lorry bearing No. KA22 -4587 to two other lorries viz. KA01 557 and KA 05 7259. This was witnessed by PWs 9 and 10. Thereafter, it is the case of the prosecution accused drove all the three lorries with the copper scrap that was shifted to the lorries. It is the case of the prosecution thereafter the accused brought PW2 in the lorry near M.S. Ramaiah hospital, Bangalore, and there they left him after paying him Rs. 500/ - threatening him not to reveal what had transpired till then to anybody. In the meantime, it is the case of the prosecution, PW3 who had gone to the check post came to the place where he had parked the lorry. On finding the lorry and his son missing from the said place, called his owner -Suresh and informed him about the missing of the lorry and his son, which he had parked near Attibele check post. The said Suresh, in turn, informed the same to PW1 - owner of the copper scrap. It was about 11.45 p.m. on 30.6.2007. Thereafter both PW1 and Suresh, the owner of the lorry came near Attibele check post and there they were informed by PW1 that the lorry and his son are found missing. They searched for the lorry and PW2. They were unable to trace the same. Thereafter it is the case of the prosecution PW1 on 1.7.2007 proceeded to Attibele police station and there he filed his complaint as per Ex.P1 before PW12 -PSI.PW12 on the basis of Ex.P1 registered a case in Crime No. 173/2007 for the offence under Section 379 of IPC initially against unknown persons and issued FIR as per Ex.P19 to the Jurisdictional Magistrate. Thereafter he handed over further investigation of the case to PW14, the investigating officer in the case. PW14 on taking over investigation proceeded to Attibele check post and there he drew up the spot panchanama as per Ex.P3 in the presence of PWs 1,3, and 6. After completing Ex.P3, he recorded the statements of PWs 3, 9 and 10. Thereafter on the information given by PW3 he seized the lorry bearing No. KA22 -4587 which had been abandoned opposite to BDA park situated in Dollars colony, RMV II stage, Bangalore under the panchanama -Ex.P2 in the presence of pancha -PW13. Thereafter, he deputed his staff to trace the accused in the case. On 4.7.2007 he received the information about the lorry bearing No. KA05 -7259 from the RTO -Hassan which disclosed that one Gopalagowda @ Gopala s/o Shivegowda of Mallahalli village, Shanthipura Hobli, Hassan Taluk is the owner. Thereafter on 16.7.2007 his staff comprising of PW11 apprehended A1, A3, A5, who are the respondents/accused in the case, near Peenya Dasarahalli bus stand at about 8.30 a.m. and produced before him at about 10.00 a.m. He arrested the said accused viz. A1, A3, A5/respondents in this appeal. On their interrogation he recorded their voluntary statements as per exhibits P20, P21 and P22 respectively. Thereafter, PW14 in pursuance of Ex.P20 -information of A1, seized 4000 kgs of copper scrap from the shop of PW4 under the mahazar -Ex.P11 in the presence of the pancha - PW5. On completion of Ex.P11, PW14 continuing the investigation seized 3100 kgs of copper scrap from behind the shop of PW8 at Peenya under the mahazar Ex.P12 in the presence of the very same pancha -PW5. Thereafter he produced the accused before the Jurisdictional Magistrate on the morning of 17.7.2007 and got them remanded to police custody for a period of five days. Continuing the investigation on 18.7.2007 he seized 4010 kgs of coppers crap from the house of one Rangasamy situated at Ganjigere village of Hassan Taluk under the mahazar -Ex.P13 in the presence of the very same pancha -PW5. Under the mahazar Ex.P13, PW14 also seized the lorries bearing Nos. KA -01 -557 and KA -05 -7259. Further on 19.08.2007 PW14 seized the motor cycle bearing No. KA 51 -4159 from the house of A5 under the panchanama Ex.P14 in pursuance of his statement Ex.P22. Thereafter, PW14 on completion of the arrest formalities of A1, A3 and A5 got them remanded to judicial custody. He also deputed his staff to trace the other absconding accused. In the mean time, he also recorded the statements of the witnesses examined on behalf of the prosecution and also cited in the charge sheet. As he could not trace the other absconding accused since the investigation had been completed, he submitted final report against the accused showing A2, A4, A6 and A7 as absconding in the case before the Jurisdictional Magistrate. The learned Magistrate thereafter split up the case of the absconding accused as they could not be traced and committed the case of A1, A3 and A5/respondents in the appeal to the Court of sessions which, on receipt of the records secured the presence of the accused, framed charge against them as aforesaid to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case in all examined PWs 1 to 14 and got marked exhibits P1 to P22. The accused have not got marked any defence exhibits in the course of the examination of the prosecution witnesses. After the closure of the prosecution evidence the accused denied all the incriminating circumstances in their examination under Section 313 Cr.P.C. They also submitted they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. The learned trial Judge on consideration of the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charge leveled against the accused. Accordingly, bythe impugned judgment and order acquitted them of the charge leveled against them. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court.

(3.) PER contra, the learned counsel appearing for the respondents/accused supported the impugned judgment and order of acquittal.