Bangalore District Court
State By vs Khadir @ Mohammad Khadir on 28 February, 2023
KABC010094462022
Presented on : 29-03-2022
Registered on : 29-03-2022
Decided on : 28.02.2023
Duration : 10 months 30 days
IN THE COURT OF LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-66)
PRESENT
SHRI. HEMANTH KUMAR. C.R.
B.A.L., L.L.B.,
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 28 th day of February, 2023
S.C.No.686/2022
COMPLAINANT:- STATE BY
Police Inspector,
Channammanakere Achhukattu
police Station, Bengaluru.
(Rep. by Public Prosecutor)
V/s.
ACCUSED:- 1. KHADIR @ MOHAMMAD KHADIR.,
s/o Late Mohammad Asif,
Aged about 29 years,
R/at No.E-248, 7th Cross,
Yarab Nagar, Karisandra,
Bengaluru South, Bengaluru.
[Accused No.6]
Premanent R/o Chikkaballi, Kodihalli
Hobli, Kanakapura Taluk, Ramanagara
District.
2
S.C.No.686/2022
2. ASGAR,
s/o late Mohammad Asif,
Aged about 34 years,
R/at No.E-248, 7th Cross,
Yarab Nagar, Karisandra,
Bengaluru South, Bengaluru.
[Accused No.8]
(By Sri. MVM., Advocate)
Date of Commencement
of offences 31.08.2012
Date of report of offences
31.08.2012
Name of complainant
Sri. N. Srinidhi, PI.,
Date of recording of
evidence 21.10.2022
Date of closing of
evidence 06.02.2023
Offence complained of U/s.399, 402 of IPC.
Opinion of the judge Acquittal
JUDGMENT
This split up charge sheet is submitted by the Sub-Inspector of Polic, Channammanakere Achhukattu police station against accused No.6 and 8 for the offences punishable under Sections 399, 402 of IPC.
2. Brief facts of prosecution case.-
The case of the prosecution is that on 31.08.2012 at about 5.30 pm., while the complainant was discharging duty at his office, has gathered information from the informant that within the limits of Chennammanakere Achukattu police station, Banashankari 3rd Stage, Vidya Peetha Road, in front of BMTC Bus-Stand, 4 th Cross, about 7-8 3 S.C.No.686/2022 persons holding with deadly weapons in their hands, are making preparation to kill their opponent Ramanagara Saleem and to rob valuables. Hence, CW1 by accompanying the panchas CW2-Rajan and CW3-Muthuraj, along with CW4 to CW10, the police personnel attached CCB Squad, went near the scene of occurrence of event at about 6.30 pm., in department vehicle bearing No.KA-02/G-780 and after confirming that the accused persons are making preparation to commit murder of their opponent and to rob valuables, have apprehended the accused No.1 to 5, however accused No.6 to 8 managed to escape from the place of occurrence of event and the accused No.1 to 5 were possessed with deadly weapons like chopper, knife, baku and two packets containing chilli powder and thereafter CW1, by drawing mahazar in the presence of panchas, has seized those deadly weapons and took the accused No.1 to 5 to the police station along with seized articles and produced them before CW11-B.B.Mallura, PSI, attached to Chennammanakere Achukattu police station and CW1 has lodged complaint against the accused No.1 to 5 and absconding accused. Accordingly, CW11 registered the case in Crime No.281/2012 against the accused No.1 to 8 for the offences punishable under Sections 399 and 402 of IPC.
3. The police after completion of the investigation, have submitted the charge sheet against the accused No.1 to 8 for the offences punishable under Sections 399, 402 of IPC before the II Addl. Chief Metropolitan Magistrate, Bengaluru. The trial court after securing the accused No.1 to 8 has committed the said case to Prl. City Civil & Session Judge, Bengaluru and in turn the same has been made over to this court in SC.No.554/2013. The accused No.6 and 8 remained absent since long and there were no chances of securing these 4 S.C.No.686/2022 accused in reasonable time, hence the case against the accused No.6 and 8 is ordered to be split up and registered a separate case and proceeded against the accused No.1 to 5 and 7 in SC.No.554/2013 and the same has ended in acquittal after full fledged trial. After securing the presence of accused No.6 and 8 in SC.No.686/2022, on execution of NBW the accused was remanded to judicial custody and on hearing, charges were framed and explained to the accused No.6 and 8 for the offences punishable under Sections 399, 402 of IPC. However, the accused No.6 and 8 pleaded not guilty of the charges leveled against them and claimed to be tried.
4. The prosecution in support of their case, have cited 11 witnesses i.e., CW1 to CW11. However, the prosecution was able to secure and examine only 3 witnesses as PW1 to PW3 and got marked the documents at Ex.P1 to Ex.P3 and MO.1 to MO7 were identified. The prosecution was able to secure and examine only CW1, CW10 and CW11. The learned Public Prosecutor has given up CW4, CW5, CW6, CW7 and CW8 and CW9. In spite of issuing proclamation against the CW2 and CW3, the police have not taken the proclamation against CW2 and CW3 hence, the evidence of CW2 and CW3 were dropped. After completion of the prosecution evidence, the statement of accused under Section 313 of Cr.P.C., was recorded. The accused No.6 and 8 have denied the incriminating evidence appearing against them the same was read over and explained to the accused persons. However, they have totally denied the incriminating evidence appearing against them and they have not chosen to lead any defense evidence on their behalf.
5. Heard the arguments. Now the points that arise for my consideration in both cases are:-
5S.C.No.686/2022
1. Whether the prosecution beyond all reasonable doubt proves that on 31.08.2012 at about 5.30 pm., within the limits of Chennammanakere Achukattu Police Station, Banashankari 3rd Stage, Vidya Peetha Road, in front of BMTC Bus-Stand, 4th Cross, the accused No.1 to 5 and 7 along with present accused No.6 and 8, holding with deadly weapons like chopper, knife, baku and two packets containing chilli powder, were making preparation to kill their opponent Ramanagara Saleem and to rob the valuables from him and thereby committed an offence punishable under Section 399 of IPC?
2. Secondly, whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place, the accused No.1 to 5 and 7 and present accused No.6 and 8, assembled there in order to kill their opponent Ramanagara Saleem and to rob the valuables from him and thereby committed an offence punishable under Section 402 of IPC?
3. What Order?
6. My answer to the above points are:
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per the final order
for the following
REASONS
7. Points No.1 & 2 :- The points No.1 & 2 are interconnected with each other, hence for the sake of convenience, I would like to take down these points together for discussion and answer.
8. The case of the prosecution is that on 31.08.2012 at about 5.30 pm., while the complainant was discharging duty at his office, has 6 S.C.No.686/2022 gathered information from the informant that within the limits of Chennammanakere Achukattu police station, Banashankari 3rd Stage, Vidya Peetha Road, in front of BMTC Bus-Stand, 4 th Cross, about 7-8 persons holding with deadly weapons in their hands, are making preparation to kill their opponent Ramanagara Saleem and to rob valuables. Hence, CW1 by accompanying the panchas CW2-Rajan and CW3-Muthuraj, along with CW4 to CW10, the police personnel attached CCB Squad, went near the scene of occurrence of event at about 6.30 pm., in department vehicle bearing No.KA-02/G-780 and after confirming that the accused persons are making preparation to commit murder of their opponent and to rob valuables, have apprehended the accused No.1 to 5, however accused No.6 to 8 managed to escape from the place of occurrence of event and the accused No.1 to 5 were possessed with deadly weapons like chopper, knife, baku and two packets containing chilli powder and thereafter CW1, by drawing mahazar in the presence of panchas, has seized those deadly weapons and took the accused No.1 to 5 to the police station along with seized articles and produced them before CW11-B.B.Mallura, PSI, attached to Chennammanakere Achukattu police station and CW1 has lodged complaint against the accused No.1 to 5 and absconding accused. Accordingly, CW11 registered the case in Crime No.281/2012 against the accused No.1 to 8 for the offences punishable under Sections 399 and 402 of IPC.
9. The prosecution in support of their case, have cited 11 witnesses to prove the guilt of the accused. The prosecution out of 11 witnesses have examined CW1, CW10 and CW11 and the prosecution has given up the evidence of CW4, CW5, CW6, CW7, CW8 and CW9. In spite of issuing proclamation against the CW2 and CW3, the police 7 S.C.No.686/2022 have not taken the proclamation against CW2 and CW3 hence, the evidence of CW2 and CW3 were dropped. CW1 - the complainant is examined as PW1, CW10 - police who accompanied for the raid along with CW1 is examined as PW2 and CW11- Investigating Officer, is examined as PW3.
10. CW1- Srinidhi, SP., is examined as PW1 wherein PW1 has deposed that from 2011 to 2012 he worked as Police Inspector in CCB, H and B division. PW1 has deposed that on 31.08.2012 around 5.30 pm., when he was in the office, he received information from the informant that within the limits Chennammanakere Achukattu police station at Vidya Peeta, near Ward No.164 BBMP, about 7-8 people killed Salim of Ramanagara, belonging to the opposition group, holding deadly weapons in their hands and making preparation to robbed them of cash and valuables. PW1 has deposed that immediately he called panchas CW2 and CW3 at 5.45 pm., and informed them and took the staff CW4 to CW10 and left the CCB office at 6.00 pm., in the departmental vehicle bearing No.KA-02/G-780 and reached the spot at about 6.30 pm., and after confirming that there were 8 accused persons who were ready to commit the crime and they surrounded and caught hold the accused persons, Chandpasha possessed in his pant pocket one iron knife, Imthiyaz possessed in his waist one machete and one Nokia mobile, Mohammed Sana possessed one Baku and one Nokia mobile, Karthik possessed in his pant pocket chilly powder packet and Imran possessed in his pocket one chilly powder packet and out of 8 assailants, three ran away and the name of the absconding accused are Kadir, Asghar and Nayaz and they seized the deadly weapons from the accused and conducted panchanama from 6.45 to 7.45 pm., in presence of panchas and packed them in a white cloth and 8 S.C.No.686/2022 seal it with the English letter K and pasted on the slip and thereafter, they brought the accused No.1 to 5 along with seized articles to Chennammanakere Achchukattu police station and gave a report to CW11 for further action. PW1 has identified his signature in the panchanama and the said panchanama is marked as Ex.P1 and his signature as Ex.P1(a) and identified in the original case in SC.No.554/2013 and also identified the report and the said report is marked as Ex.P2 and his signature as Ex.P2(a) and identified in original case in SC.No.554/2013 and also he identified the seized weapons and the said weapons already identified as MO.1 to MO.7 in the original case in SC.No.554/2013 and also PW2 identified the accused persons before the court.
11. PW1 has been cross-examined by the accused counsel wherein PW1 has admitted that the information comes around 5.30 pm., when he was in the station and from their station it will be about 6- 7 kilometer to the crime spot and it takes about 20 to 25 minutes to reach the said place from their office and has not given any notice to pancha CW2 and CW3. PW1 has denied the suggestion that they have not go to the spot on 31.08.2012 and not arrested any accused and not seized the weapons. PW1 has denied the suggestion that he has not made any panchanama in the place in presence of panchas and he has not caught any accused and none of the accused have ran away. PW1 has denied the suggestion that they brought the accused from their house and included them to the said case and filed a false case. PW1 has further denied the suggestion that he has conducted panchanama in the police station and further denied that on 31.08.2012 the accused No.6 and 8 were not present at the said place.
9S.C.No.686/2022
12. CW10- Narasimhamurthy is examined as PW2 wherein PW2 has deposed that from 2007 to 2013 he worked as police constable at CCB, H & B division. PW2 has further deposed that on 31.08.2012 around 5.30 pm., when he was in the office, received information from the informant that within the limits Chennammanakere Achukattu police station at Vidya Peeta, near Ward No.164 BBMP, about 7-8 people killed Salim of Ramanagara, belonging to the opposition group, holding deadly weapons in their hands and making preparation to robbed them of cash and valuables. PW2 has deposed that immediately CW1 called panchas CW2 and CW3 at 5.45 pm., and informed them and took him and CW4 to CW9 and left the CCB office at 6.00 pm., in the departmental vehicle bearing No.KA-02/G-780 and reached the spot at about 6.30 pm., and after confirming that there were 8 accused persons who were ready to commit the crime and they surrounded and caught hold the accused persons, Chandpasha possessed in his pant pocket one iron knife, Imthiyaz possessed in his waist one machete and one Nokia mobile, Mohammed Sana possessed one Baku and one Nokia mobile, Karthik possessed in his pant pocket chilly powder packet and Imran possessed in his pocket one chilly powder packet and out of 8 assailants, three ran away and the name of the absconding accused are Kadir, Asghar and Nayaz and they seized the deadly weapons from the accused and conducted panchanama from 6.45 to 7.45 pm., in presence of panchas and packed them in a white cloth and seal it with the English letter K and pasted on the slip and thereafter, they brought the accused No.1 to 5 along with seized articles to Chennammanakere Achchukattu police station and CW1 gave a report to CW11 for further action. PW2 has deposed that he identify the seized articles and the said articles are 10 S.C.No.686/2022 already marked as MO.1 to MO.7 and also identfied the accused before the court.
13. PW2 has been cross-examined by the accused counsel wherein PW2 has admitted that the information comes around 5.30 pm., when CW1 was in the station and from their station it will be about 6-7 kilometer to the crime spot and it takes about 20 to 25 minutes to reach the said place from their office and has not given any notice to pancha CW2 and CW3. PW2 has denied the suggestion that they have not go to the spot on 31.08.2012 and not arrested any accused and not seized the weapons. PW2 has denied the suggestion that he has not made any panchanama in the place in presence of panchas and he has not caught any accused and none of the accused have ran away. PW2 has denied the suggestion that they brought the accused from their house and included them to the said case and filed a false case. PW2 has further denied the suggestion that they conducted panchanama in the police station and further denied that on 31.08.2012 the accused No.6 and 8 were not present at the said place.
14. CW11- Baramappa B. Mallur, Police Inspector, is examined as PW3 wherein PW3 has deposed that from July, 2011 to February, 2014 he worked as PSI at Chennammanakere Achuchukattu police station. PW3 has deposed that on 31.08.2012 at 9.30 pm., when he was the SHO of the police station, CW1 of CCB unit, Bengaluru city came to the station and produced the five accused persons with the help of staff and panchas and copy of the panchanama where incident took place and the weapons seized from the accused and produced other materials and receiving the complaint he has registered the case in Crime No.281/2012 under Sections 399, 402 of IPC and submitted the report to the court. PW3 has identified the complaint given by CW1 11 S.C.No.686/2022 and the said complaint has already been marked in the original case SC.No.554/2013 and also identified FIR and the said FIR is marked as Ex.P3 and his signature as Ex.P3(a). PW3 has deposed that he has subjected the articles in station PF.No.146/2012 produced by CW1 and thereafter he has arrest the accused and followed the arrest procedure and also recorded the voluntarily statement of the accused and also recorded the statement of CW2, CW3 and CW4 to CW10. PW3 has deposed that the accused was medically examined and produced before the court on 01.09.2012 and they remanded to judicial custody by the court. Khadeer and Nayaza who were absconding in this case, appeared before the 2nd Addl. Chief Metropolitan Magistrate, Bengaluru on 04.09.2012 and they remanded to judicial custody by the court and after verifying the documents collected so far in this case the accused Asgar has absconded, he has submitted the charge sheet against him and the other accused No.1 to 7.
15. PW3 has been cross-examined by the accused counsel wherein PW3 has denied the suggestion that on 31.08.2012 CW1 has not given any complaint nor any accused nor panchanama and the weapons. PW3 has denied the suggestion that CW1 has prepared the panchanama in the station and CW1 brought the accused from their house and produced them before him. PW3 has denied the suggestion that he has filed the charge sheet against the accused persons before the court even though there are no witnesses against them.
16. On perusal of the records it is noticed that the prosecution to prove the guilt of the accused have examined PW1 to PW3. CW1- the complainant is examined as PW1, CW10 is examined as PW2 and CW11 is examined as PW3. On perusal of the entire records, the prosecution have examined PW1 to PW3 and marked Ex.P1 to Ex.P3 12 S.C.No.686/2022 in support of their case. PW1 to PW3 are the police officials and PW1 is the complainant and PW2 is the police official who had accompanied in the raid and he has lead the evidence inconsistency with the evidence of PW1 and PW3 is the person who has registered the case and has made investigation, recording the statement of witnesses and has filed the charge sheet. The prosecution except examining the said witness no other independent witnesses have been examined who had accompanied in the raid and was present in the raid and also in their presence the police have apprehended and seized MO.1 to MO.7, CW2 and CW3 are the panchas to the said incident who had accompanied PW1 and PW2 in the raid and in their presence Ex.P1- panchanama was drawn and the articles MO.1 to MO.7 were seized from the accused persons in their presence. CW2 and CW3 have not been secured by the prosecution to lead the evidence, in spite of providing sufficient opportunity except the police officials no other independent witness have been examined by the prosecution to prove the guilt of the accused. The prosecution have not secured the presence of CW2 and CW3, in spite of issuance of warrant and having made several efforts to secure CW2 and CW3. CW2 and CW3 are the crucial witnesses to the said incident as they are panchas and they being the independent witnesses in their presence the police have conducted the raid on the accused persons and they have seized the MO.1 to MO.7 in their presence. The prosecution has failed to examine CW2 and CW3 having secured before this court. The Hon'ble Supreme Court in its decision reported in (2013) 13 SCC 1 in the case of Yakub Abdul Razak Memon Vs. State of Maharashtra enumerated conditions for valid panchanama. It is held that panchanama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence. However, it is not only the recordings 13 S.C.No.686/2022 of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The documents so prepared needs to be signed by the investigating officer who prepares the same and atleast by two independent and impartial witnesses called 'panchas' as also by the concerned party. The witnesses are required to be not only impartial but also 'respectable'. Respectable here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of panchanama proceedings. The primary intention behind the panchanama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search, with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises or location searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent is to control and to check these mal practices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of articles.
17. On any deviation from the procedure, the entire panchanama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure occurs due to a practical impossibility, then that should be recorded by the IO in his file so as to enable him who answered during the time of his examination as a witness in the court of law.
18. In this case, panch witnesses not appeared and deposed before the court with regard to panchanama. The procedure enumerated by the Hon'ble Supreme Court has not been followed by the Investigating Officer while drawing the panchanama. In a case 14 S.C.No.686/2022 under section 399 and 402 of Indian Penal Code, the evidence of panch witnesses and panchanama plays pivotal role. There is no evidence of independent witnesses to prove the drawing of panchanama in this case. The prosecution has to prove the guilt of the accused beyond reasonable doubt though the prosecution has lead the evidence of PW1 to PW3 the police officials. The said evidence of PW1 to PW3 have not been corroborated by the evidence of independent witnesses who are CW2 and CW3. The prosecution having failed to examine CW2 and CW3 the independent witnesses and the evidence of PW1 to PW3 is not sufficient to prove the guilt of the accused persons beyond reasonable doubt. The prosecution having failed to prove the guilt of the accused persons as such the accused No.1, 5 and 6 are entitled for benefit of doubt. Hence, the prosecution has failed to prove the alleged offences against the accused No.1, 5 and 6. Accordingly, I answered points No.1 and 2 in the 'Negative'.
19. Point No.3 :- For the above reasons, I proceed to pass the following :
ORDER Acting under Section 235(1) of Cr.P.C., accused No.6 and 8 are acquitted for the offences punishable under Sections 399 and 402 of IPC.
The bail bonds and surety bonds of accused No.6 and 8 shall stands cancelled.
Note:- M.O.1 to 7 are found worthless are ordered to be destroyed after the appeal period is over.15
S.C.No.686/2022 The personal bond and surety bond of the accused shall remain in force for a period of six months as per Section 437(A) of Cr.P.C.
(Directly dictated to the Stenographer online computer, typed by her, corrected and then pronounced by me in the Open Court on this 28th day of February, 2023) (HEMANTH KUMAR. C.R) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION:-
PW1 Srinidhi
PW2 Narasimhamurthy
PW3 Baramappa B Mallur
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:-
Ex.P1 Panchanama has already been marked
in SC.No.554/2013
Ex.P2 Complaint has already been marked in
SC.No.554/2012
Ex.P3 FIR has already been marked in
SC.No.554/2012
LIST OF MATERIAL OBJECTS MARKED:-
Note.- MO.1 to 7 has already been marked in SC.No.554/2012 16 S.C.No.686/2022 LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(HEMANTH KUMAR. C.R) LXV Addl. City Civil & Sessions Judge, Bengaluru.