Bangalore District Court
State By: Police Inspector vs 2. Aslam Pasha S/O Alla Bakash on 22 August, 2017
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.PATIL MOHANKUMAR BHEEMANAGOUDA
B.Com.,LL.B.,(Spl)
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 22nd DAY OF AUGUST, 2017
S C No. 1325/2016
COMPLAINANT: State by: Police Inspector,
Ashok Nagara Police Station,
Bengaluru.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED:
2. Aslam Pasha S/o Alla Bakash,
Aged about 26 years, R/at
Ramohalli cross, Dodda
Aladamara, Tavarekere,
Bengaluru.
3. Vimal @ Joseph S/o Anthoni,
Aged about 26 years, R/at 3rd
Cross, Shiva Chitra Mandira,
L.R.Nagara, Adugodi, Bengaluru.
4. Moula S/o Syed Asif, Aged about
25 years, R/at nO.3, L.R.Nagar
Slum, Adugodi, Bengaluru.
(A2 & A3 by Sri. L.P., Adv)
(A4 by Sri.B.N.D. Adv)
2 S.C.No.1325/2016
Date of 29.7.2015
Commencement of
offences
Date of report of 29.7.2015
offences
Name of complainant Sri. Hajaresh A Killedar,
Police Sub-Inspector
Date of recording of 28.02.2017
evidence
Date of closing of 18.08.2017
evidence
Offence complained of U/s. 399 and 402 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet filed by the Ashok Nagar police station, as against accused, for the offences punishable u/sec.399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant Hajaresh A Killedar is the police inspector, working in Ashok Nagara PS. He states that on 29.7.2015 at about 5.45PM, when he was in the station, on credible information, within the jurisdiction of Ashok Nagar 3 S.C.No.1325/2016 police station, Hosur road, nearby Christian cemetery, about 5 - 6 persons had gathered behind the tree and they were making preparation to commit dacoity by snatching cash, mobile phone and gold ornaments of the general public passing on the said road. The complainant states that he immediately summoned the constables i.e. CW6 to CW10 and so also he summoned two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas left the police station at about 6.15PM and went towards the Hosuru road junction. They stopped the vehicle at some distance from the cemetery and by observing the assailants from a distance, they got themselves satisfied that the assailants were making preparation to commit dacoity. The complainant states that by observing the assailants from a little distance they found that these assailants were holding deadly weapons in their hands and they were hiding behind the tree in the Christian cemetery on Hosuru Road and they were taking among themselves that, they would commit 4 S.C.No.1325/2016 dacoity by robbing passers by of their cash, gold and mobile phones. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of 4 persons and one of them ran away. He further states that the accused did not give proper answers for their assembling in a said isolated place. The complainant states that he along with PC-7414 i.e. CW9 Srinivas arrested Syed Aslam @ Badal Maaboob and upon search of the accused by name Syed Aslam, from him they recovered one button knife and Rs.30/-. Similarly, HC 4393 i.e. CW6 Prakash.D and PC 2304 CW8 Mallirkarjuna have caught hold as Aslam Pasha and recovered one knife, one packet of chilly powder and Rs.25/- cash. HC 5669 i.e.CW7 Gavigowda caught hold of accused Vimal @ Joseph and upon search, he recovered one iron rod and cash of Rs.60/-
from him. Similarly, PC2328 i.e. CW10 Mahesha caught hold of A4 Moula S/o Syed Asif and upon search, they recovered one small chopper, one packet of chilly powder and Rs.20/- cash. Upon enquiry, these arrested accused persons, revealed that they were making preparation to 5 S.C.No.1325/2016 commit dacoity. The complainant further states that from 6.30 PM - 7.45PM, he seized the deadly weapons, cash and chilly powder from the these accused persons and in the presence of two pancahs i.e. CW2 Subbareddy and CW3 Shehajan and conducted the mahazar. Thereafter, at about 8.15PM he came to the police station along with accused and lodged the complaint.
3. Learned XLIII ACMM, Bangalore, took cognizance of the offences p/u/sec. 399 and 402 of IPC. During the course of investigation, A1 was reported to be dead. Hence, the case against A1, stood abated. A5 remained absconding since long and there were no chances of securing the accused in reasonable time. Hence, case against A5 is ordered to be split up and registered a separate case and proceeded against A2 to A4. After committal, the case is numbered as S.C.No.1325/2016 and then made over to this court, for disposal in accordance with law. After hearing, charges were framed and explained to A2 to A4 for the offences p/u/Sec.399 and 402 of IPC. However, A2 to A4 6 S.C.No.1325/2016 pleaded not guilty of the charges leveled against them and they claimed to be tried.
4. The prosecution in support of its contention had totally cited 11 witnesses i.e. CW1 to CW11. However, the prosecution was able to secure and examine 3 witnesses i.e. PW1 to PW3 and document at Ex.P.1 to Ex.P.4 and M.O.1 to M.O.7 were marked. The prosecution was able to secure and examine only CW1, CW6 and CW11. CW7 to cW10 were given up by the prosecution. Even though, sufficient opportunity was given, prosecution was unable to secure CW2 to CW5. Hence, prayer of learned PP was rejected and CW2 to CW5 were dropped and thereafter 313 statement was recorded. The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against them. The accused not chosen to lead any defense evidence on their behalf.
7 S.C.No.1325/2016
5. Heard argument from both sides.
6. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on 29.7.2015, at about 6.15 PM. within the limits of Ashok Nagar P.S behind the tree in the Christian cemetery on Hosuru Road, A2 to A4 along with deceased A1 and absconding A5, holding deadly weapons like knife, iron rod, long chopper and chilly powder packet, were making preparations to commit dacoity of passers by and to rob the valuables from them, and thereby committed an offence punishable u/Sec. 399 of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, A2 to A4 along with deceased A1 and absconding A5 had assembled there to commit dacoity by robbing the valuables of passers by and thereby committed an offence p/u/Sec. 402 of IPC?
3. What Order?
7. My answer to the above points are:
POINT NO.1 : In the Negative POINT NO.2 : In the Negative 8 S.C.No.1325/2016 POINT NO.3 : As per the final order for the following:
REASONS
8. POINT NOs.1 and 2 : Since these points are interconnected with each other, for the sake of convenience, I would like to take these points together for common consideration.
9. The complainant has been examined as PW3. He states that on 29.7.2015 at about 5.45PM, when he was in the station, on credible information, within the jurisdiction of Ashok Nagar police station, Hosur road, nearby Christian cemetery, about 5 - 6 persons had gathered behind the tree and they were making preparation to commit dacoity by snatching cash, mobile phone and gold ornaments of the general public passing on the said road. The complainant states that he immediately summoned the constables i.e. CW6 to CW10 and so also he summoned two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and 9 S.C.No.1325/2016 accordingly, the complainant along with his staff and panchas left the police station at about 6.15PM and went towards the Hosuru road junction. They stopped the vehicle at some distance from the cemetery and by observing the assailants from a distance, they got themselves satisfied that the assailants were making preparation to commit dacoity. The complainant states that by observing the assailants from a little distance they found that these assailants were holding deadly weapons in their hands and they were hiding behind the tree in the Christian cemetery on Hosuru Road and they were taking among themselves that, they would commit dacoity by robbing passers by of their cash, gold and mobile phones. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of 4 persons and one of them ran away. He further states that the accused did not give proper answers for their assembling in a said isolated place. The complainant states that he along with PC-7414 i.e. CW9 Srinivas arrested Syed Aslam @ Badal Maaboob and upon search of the accused by name Syed 10 S.C.No.1325/2016 Aslam, from him they recovered one button knife and Rs.30/-. Similarly, HC 4393 i.e. CW6 Prakash.D and PC 2304 CW8 Mallirkarjuna have caught hold as Aslam Pasha and recovered one knife, one packet of chilly powder and Rs.25/- cash. HC 5669 i.e.CW7 Gavigowda caught hold of accused Vimal @ Joseph and upon search, he recovered one iron rod and cash of Rs.60/- from him. Similarly, PC2328 i.e. CW10 Mahesha caught hold of A4 Moula S/o Syed Asif and upon search, they recovered one small chopper, one packet of chilly powder and Rs.20/- cash. Upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity. The complainant further states that from 6.30 PM - 7.45PM, he seized the deadly weapons, cash and chilly powder from the these accused persons and in the presence of two pancahs i.e. CW2 Subbareddy and CW3 Shehajan and conducted the mahazar. Thereafter, at about 8.15PM he came to the police station along with accused and lodged the complaint. 11 S.C.No.1325/2016
10. PW3 has elaborately deposed of having arrested the accused persons and for having seized the deadly weapons, chilly powder and cash from the accused persons. He further deposed that in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.4. He also identifies the deadly weapons seized i.e. two knives, two packet of chilly powder, one iron rod, small chopper and accordingly, they were marked as M.O.1 to M.o.6. He states that he has conducted panchanama as per Ex.P.4 in the presence of CW2 and CW3. Identifies the accused persons. PW3 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, PW3 in his cross examination denies the suggestion that though he has not at all received any information, he deposes falsely before the court. PW3 denies the suggestion that nearby the scene of offence, general public and vehicles frequently move. PW3 also denies the suggestion that he has cooked up a false complaint as per Ex.P.1 in his office and planted M.O.1 to M.O.6 for the purpose of this case. He further 12 S.C.No.1325/2016 admits the suggestion that similar kind of M.O.1 to 6 are generally available at shops.. PW3 denies the suggestion that even though A2 to A4 have not at all committed the alleged offences, he lodged false complaint against them. PW3 denies the suggestion that A2 to A4 were not at all present at the scene of offence at the material point of time and he took custody of A2 to A4, from their respective houses and then registered false case against them.
11. PW1 D.Prakash, Head constable working in Ashok Nagar PS. He is one of the staff members, who had accompanied PW3 and arrested the accused persons. The evidence of this witness corroborates the evidence of I.O. He identifies the accused and material objects.
12. PW2 MallikarjunaS. PI, Ashok Nagar PS, is the I.O, who has conducted the investigation. He states that on 29.7.2015 when he was SHO, CW1 Hajaresh A Killedar came to the police station along with accused, seized weapons and other articles and panchanama and lodged a 13 S.C.No.1325/2016 complaint against the accused persons. He has registered the case in Cr.No510/2015 and submitted FIR to the court. He identifies the complaint at Ex.P.1, FIR at Ex.P.2. He further deposes that, he received M.O.1 to M.O.6 from the complainant and subjected them to P.F.No.155/2015 and submitted requisition to the court. He further states that, later on he recorded the statements of CW2 Subbareddy and CW3 Tejan. PW2 further states that, thereafter he has recorded the voluntary statements of accused persons. He identifies the accused before the court and also accused who were produced from central jail, through Video conference.
13. The prosecution in order to prove its case, has totally cited 11 witnesses i.e. CW1 to CW11. However, the prosecution was able to summon and examine 3 witnesses i.e. PW1 to PW3. Even though, sufficient opportunity was given and coercive steps were taken, the prosecution was unable secure the material witnesses i.e.CW2 to CW5. Hence, prayer of learned PP was rejected and CW2 to CW5 14 S.C.No.1325/2016 were dropped. Similarly, learned PP has given up CW7 to CW10.
14. It is specific case of prosecution that complainant i.e. I.O had received credible information that the accused persons had assembled at the spot with an intention to commit dacoity, they had assembled with deadly weapons like iron rod, knife, chilly powder and they have making preparation to commit dacoity. PW3 has specifically stated that, upon receipt of credible information, he immediately summoned two independent panch witnesses i.e. CW2 Subba Reddy and CW3 Shehajan. He requested them to act as panchas, upon which the pancahs have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that they stopped their vehicle at some distance from the spot and observed the accused persons. I.O was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded the accused 15 S.C.No.1325/2016 and they were able to apprehend A1 to A4. Meanwhile, A5 managed to escape from the spot. The complainant has further stated that from the possession of the accused, he has recovered the deadly weapons, used for committing dacoity. He states that in the presence of 2 independent panchas i.e., CW2 and CW3, he has seized the articles i.e. iron rod, knife and chilly powder packet. He has conducted the mahazar as per Ex.P.4 in the presence of those two material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.4, to prove that these Material objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized two knives, two chilly powder packets, iron rod, long chopper and totally cash of Rs.135/. In order to prove this offence, evidence of PW1 to PW3 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
16 S.C.No.1325/2016
15. It is pertinent to note that, even though sufficient opportunity was given and coercive steps were taken to secure CW2 and CW3, the prosecution was unable to secure them. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The only evidence on record is that of the complainant i.e. PW3, who was PSI attached to Ashok Nagar Police station and PW1 ASI, attached to Ashok Nagar PS who has assisted PW3 in nabbing the accused. Evidence of PW1 and PW3 are corroborated by the evidence of PW2, who has registered the case and conducted the investigation. No doubt, PW3 has deposed of having got credible information about the commission of offence by the accused. He has deposed of having secured the panchas, gone to the spot and found that, the accused had assembled and they were making preparation to commit dacoity. However, the evidence of these official and interested witnesses is not at all corroborated by the evidence of independent mahazar witnesses i.e. CW2 Subba Reddy and CW3 Shehajan. Even though, the evidence of PW2 corroborates the evidence of 17 S.C.No.1325/2016 PW3/complainant and PW1, I am of the opinion that it is not safe to rely only on the evidence of these interested and official witnesses. The prosecution was unable to secure even one of the independent mahazar witnesses i.e. CW2 and CW3. Under the circumstances, I am the opinion that it is not safe to rely upon of evidence of PW1 to PW3 alone. Though it is specific case of prosecution that mahazar as per Ex.P.4 was conducted and M.O.1 to M.O.7 were recovered in the presence of CW2 and CW3, the prosecution was unable to secure none of these two material witnesses. Hence, it raises a serious doubt about the prosecution case. Naturally benefit of doubt has to be given to the accused. Therefore, I am of the opinion that prosecution has failed to prove its case, beyond reasonable doubt. Accordingly, I answer point No.1 and 2 in the 'Negative'.
16. POINT NO.3 : For the above reasons, I proceed to pass the following :
18 S.C.No.1325/2016
ORDER Acting under Sec.235(1) of Cr.P.C., Accused Nos.2 to 4 are acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
Bail Bonds of A4 and his surety Bonds, stand cancelled.
A2 and A3 shall be set at liberty forthwith, if they are not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.7 in connection with the split up case registered against A5.
*** (Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 22nd day of August, 2017) (PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.19 S.C.No.1325/2016
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW-1 D.Prakash PW-2 Mallikarjuna PW-3 Hajaresh Killedar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.2 FIR Ex.P.3 Voluntary statement Ex.P.4 Spot mahazar LIST OF MATERIAL OBJECTS MARKED MO-1 Knife MO-2 knife MO-3 Chilly powder packet MO-4 Chilly Powder packet MO-5 Iron rod MO-6 Long chopper MO-7 Cash of Rs.135/-
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
20 S.C.No.1325/2016 21 S.C.No.1325/2016 Dt:22.8.2017 State : PP A2 & A3 : Sri.LP A4 : Sri.BND For judgment
Judgment pronounced in open court, vide separately, ORDER Acting under Sec.235(1) of Cr.P.C., Accused Nos.2 to 4 are acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
Bail Bonds of A4 and his surety Bonds, stand cancelled.
A2 and A3 shall be set at liberty forthwith, if they are not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.7 in connection with the split up case registered against A5.
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.22 S.C.No.1325/2016