Bangalore District Court
The State Of Karnataka vs A1. Javeed Khan @ Javeed S/O Sajid Khan on 12 April, 2019
IN THE COURT OF THE LX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.61)
Dated this the 12th day of April, 2019
:Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No. 773 / 2014
COMPLAINANT:- The State of Karnataka,
By Commercial Street Police Station,
Bengaluru.
(By Public Prosecutor)
Vs
ACCUSED:- A1. Javeed Khan @ Javeed S/o Sajid Khan,
Aged about 25 years,
R/at: No.89/5, 4th main, Near
Shabuddin Masjid
Bharath Matha Layout Road
Venkateshpuram, K.G.Halli
Bengaluru.
A2. Salman A.R. S/o Late Abdul Rehaman
Aged about 25 years
R/at: 15/3, 2nd Floor
3rd Cross, Gandhinagara
Arabic college Post
K.G.Halli, Bengaluru
A.3 Thansir P.M. S/o Mustafa
Aged about 20 years
R/at No.24/7, Masjid Street
BSA Road, Tannery Road
K.G.halli, Bengaluru.
2 S.C. No:773/2014
A4. Wasim S/o Jahir Ahmed
Aged about 22 years
r/at: No.182, 3rd Main,
4th Cross, B.D.A.Layout
Venkateshapuram
K.G.Halli, Bengaluru.
A5. Syed Mujamil @ Mujamil S/o
Late Syed Chand Pasha
Aged about 20 years
r/at: No.804, 16th Cross,
Davis Road, Pulakeshi Nagara
Bengaluru
Date of offence 23.10.2013 at 21.50 hours
Date of report of offence 24.10.2013 at 00.30 hours
Name of the complainant Mohan Kumar.V.
Date of commencement of 16.03.2016
recording of evidence
Date of closing of evidence 11.01.2017
Offences complained of Sec. 397 and 120(B) r/w 34 of
IPC
Opinion of the Judge Accused No.1 to 3 are found
guilty and accused No.4 and 5
found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri Mabusubani, Adv for A1, 3,
4
And 5
Sri B.V.Manjunath Gowda, Adv
for A2
3 S.C. No:773/2014
JUDGMENT
1. The police Inspector of Commercial Street Police station has presented this charge sheet against accused No.1 to 5 for the offences punishable U/Sec.120(B) and 397 r/w 34 of IPC.
2. Guest of allegations leveled angst the accused persons as per charge sheet and other materials on record as follows:
One Mohan Kumar who was working as Supervisor at K.B.S.Fair Price Shop, has lodged the complaint against the accused No.1 to 3 stating that on 23.10.2013 accused No.4 and 5 who are also working in the said shop had attended the duty and took the leave ½ hour early stating that they have to go home urgently. Further states that, at about 9.50pm, the accused No.1 to 3 came to the said shop under the guise of customers to buy rusk and biscuits. But the complainant told that he had closed the system and he cannot sell the materials without bill. But the accused persons came inside the shop forcibly and one of them looking for the things of biscuits 4 S.C. No:773/2014 section, another was in oil section and another was in noodles section. Further it is stated that, the complainant informed the accused persons, time was over and hence, he is not ready to sell the things without bill. By that time, the accused persons by pressing the mouth and neck of the complainant. At that time, the complainant's brother Gangaraj came for his rescue. The said persons assaulted the complainant as well as his brother with iron spanner caused hurt to the left hand of CW1 and right hand of CW2 and they demanded for locker key, for which the complainant refused to give. However, they snatched the celkon mobile phone and locker key from the pant pocket of CW1 and pushed into the storeroom and locked CW1 and 2 and thereafter they opened the cash drawer by using the keys and took away cash of Rs.33,000/- and flee away from the said place by leaving the complainant and his brother in a storeroom and thereby accused No.1 to 5 committed the offence of robbery punishable under Sec.120B and 397 R/w. Section 34 of IPC.5 S.C. No:773/2014
3. On the basis of the said fact, the complainant police have presented the charge sheet against the accused No.1 to 5 for the above said offences.
4. At the crime stage, the accused persons have been enlarged on bail. On receipt of charge sheet, the commital court has complied provisions u/Sec.207 of Cr.P.C. and committed the case to Hon'ble Prl.City Civil and Sessions Judge, Bengaluru. Thereafter, the mater has been assigned to this court. On receipt of committal records, this court has issued summons to the accused and they have been appeared through their respective counsels. After hearing both sides, my predecessor officer has framed the charge against accused No.1 to 5 for the offences punishable U/Secs.120B and 397 r/w Section 34 of IPC, the contents of the charge for the above said offences read over in the language known to accused No.1 to 5 and they denied the same and claimed to be tried.
5. That prosecution, in support of its case examined nine witnesses as PW-1 to PW-9, out of 39 witnesses cited in the charge sheet, got marked nine documents at Ex.P.1 to Ex.P.9 and MOs.1 to 3. Accused have not examined any 6 S.C. No:773/2014 witnesses and not got marked any documents during the course of examination of the prosecution witnesses.
6. After closure of the prosecution evidence, the statement of accused No.1 to 5 under Sec.313 of Cr.P.C., is recorded. They have denied all the incriminating evidence appearing against them in the evidence of prosecution witnesses. Thereafter, the accused were called upon the enter into their defence and to lead any evidence that they might have in support their off. The accused have submitted that they have no defence evidence to lead.
7. I have heard the learned Public Prosecutor for the State and the learned counsels for accused No.1 to 5. I have also gone through the entire materials, evidence and documents placed on record.
8. In the facts and circumstances of the case, the points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond all reasonable doubts that on 23.10.2013 at about 9.50 p.m. while CW1 Mohan Kumar.V. 7 S.C. No:773/2014 was working as Supervisor and CW2 Gangaraj was working as Salesman at K.B.S.Fair Price Shop, situated at No.51/1, Kamaraja Road, within the jurisdiction of Commercial Street Police Station, accused No.4 and 5 who are also working in the said shop as sales men, having common intention to commit criminal offence, have criminally conspired with accused No.1 to 3 and have committed the offence of criminal conspiracy punishable under Sec. 120B r/w Sec.34 of IPC?
2) Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, accused No.1 to 5 having common intention to commit criminal offence, Accused No.1 to 3 came to the K.B.S. Fair Price shop under the guise of customers and assaulted CW1 Mohan Kumar and CW2 Gangaraj by hands, snatched the Celkon mobile phone, locker key from CW1 and locked CW1 and 2 in the store room and thereafter they opened the cash drawer by using the keys and took away cash of Rs.33,000/- and escaped from the said place and thereby committed an offence punishable U/Sec.392 r/w 34 of IPC?8 S.C. No:773/2014
3) Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, accused No.1 to 5 having common intention to commit criminal offence, Accused No.1 to 3 came to the K.B.S. Fair Price shop under the guise of customers and assaulted CW1 Mohan Kumar and CW2 Gangaraj by hands and by using rinch spanner and caused grievous hurt to the left hand of CW1 and right hand of CW2 and snatched the Cellkon mobile phone and locker key from CW1 and locked CW1 and 2 in the store room and thereafter they opened the cash drawer by using the keys and took away cash of Rs.33,000/- and thereby committed an offence punishable U/Sec.397 r/w 34 of IPC?
4) What order?
10. My answer to the above points are as under:-
Point No.1 : In the negative Point No.2 : Partly affirmative (So far as accused No.1 to 3 in Affirmative, Accused No.4 & 5 are concerned in Negative) Point No.3 : In the negative Point No.4 : As per final order for the following:-9 S.C. No:773/2014
REASONS
11. Point No.1 to 3:- For the sake of convenience, to avoid repetition of discussions, these points are considered together.
12. Inorder to establish the charge leveled against the accused, the prosecution has placed reliance on the testimonies of PW-1 to 6 and official witnesses. PW-1 and 2 are the eye witnesses and the victims. PW-3 and 4 are the panchas, PW-5 and 6 are the independent witnesses, Pw-7 and 8 are the police witnesses, PW-9 is the Doctor.
13. PW-3 to 6 have not supported the case, Pw-1 and 2 are the star witnesses and PW-9 is the Doctor, his evidence is corroborated with the evidence of PW-1 and 2.
14. PW-1 and 2 have stated in their evidence that PW-1 Mohan Kumar.V, the supervisor in KBS Fair Price Shop and PW-2 is the salesman in the said shop. PW-1 states that on 23.10.2013, accused No.4 and 5 attended to duty, but the said accused took leave half an hour early by stating that they have to home urgently, at that time the time was around 9.50 p.m., 10 S.C. No:773/2014 PW-1 by puling half-shutter down was at computer system, at that time, accused No.1 to 3 came and asked for rusk and biscuits. At that time accused No.4 and 5 had already gone. He told the accused that since he had closed the computer system he cannot sell without billing. But the said accused came in by force and one of them was looking for things in biscuits section and another in oil section and another was in noodles section. Further, he stated that he found them in oil section and told to the accused that there is no sales as the time was over. By that time the accused No.1 to 3 held his neck and mouth. PW-2 Gangaraju came for his rescue, said accused No.1 to 3 assaulted him and his brother with rinch spanner, his brother Gangaraju and himself had sustained injuries in the assault. Said three persons pushed them into the room and demanded for locker key, for which PW-1 refused to give, however, they took out the locker key from his pant pocket by threatening and also snatched his Celko Mobile Phone, those three persons robbed Rs.33,000/- from the locked and fled away from the spot after locking PW-1 and 2 in the room. Further, PW-1 states that they came out from the room by break opening the plastic door and saw that the said three 11 S.C. No:773/2014 persons along with accused No.4 and 5 running away and he identified the accused No.1 to 3 before the court and he informed before the complainant police.
15. PW-2 Gangaraju who was working in the said shop apart from them five other persons were also working in the said shop, including the said accused No.4 and 5. Further, PW- 2 states in-corroborating with the evidence of PW-1 and PW-2 also saw accused No.1 to 3 running away from the spot and PW-2 had informed the incident to the Manager and thereafter Pw-1 and 2 took treatment in Bowring Hospital, Bengaluru. In this regard, PW-2 has also given statement before the Investigating Officer/PW-9 and PW-2 has identified MO-1 to 3.
16. In their cross-examination PW-1 and 2 states that accused No.4 and 5 are also working, they were good in their working conditions, on the date of incident accused No.4 and 5 had gone home half an hour early for their urgent work. Further, PW-1 admits that PW-1 has not stated anything about accused No.4 and 5. In Ex.P.1 also he has not given any statement against accused No.4 and 5. Further, PW-1 has 12 S.C. No:773/2014 denied the suggestions made by the counsel for accused No.4 and 5.
17. So far as PW-2 is concerned, the defence counsel have fully cross-examined and defence counsel has tried to suggest some points which was agreed in the chief examination, but the witness has denied the suggestions which were put forth by the counsel for the accused.
18. On perusal of the evidence lead by the PW-1 and 2the ingredients of Section 120A are not covered, that the presence of accused No.4 and 5 are not stated by PW-1 and 2 in their statement as well as in Ex.P.1. PW-1 and 2 had improved their version at the time of stating the evidence. Such evidence which is not trustworthy for the points of presence of accused No.4 and 5.
19. In the present case the ingredients of Section 120A is not covered as the evidence against accused No.4 and 5 have not come into existence. Mere saying in the evidence without the information at the time of investigating the evidence will not be sufficient to bring home the accused No.4 and 5 as 13 S.C. No:773/2014 under Section 120B of IPC. Further, that the evidence and materials on records reveals that the presence of accused No. 1 to 3 are there but they were not having any criminal conspiracy against one and another for committing the offence under Section 397 of IPC.
20. First and foremost, that the offence under Section 120B of IPC does not incorporate any substantive offence as such absence of ingredients of Section 120A of IPC. The essential ingredients of the offence under Section 397 of IPC are the accused must commit robbery or dacoity, while committing said robbery or dacoity the accused has to use deadly weapon to cause grievous hurt or attempt to cause death or grievous hurt to any person. The said Section 397 of IPC is imposed minimum punishment of seven years but not merely serve as being complimentary to Section 392 and 395 by regulating the punishment already provided for dacoity or robbery. When the dacoity or robbery committed was found attended upon certain aggravate circumstance use of deadly weapon or causing grievous hurt or attempting to cause death or grievous hurt for that reason, no doubt the provision of 14 S.C. No:773/2014 Section 397 of IPC will be applicable. Further, that for proving Section 397 of IPC those who committed the grievous injury he will be alone liable for punishment. No doubt that the provision postulates only the independent Act of the accused to be relevant to attract Section 397 of IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability encrypted in Section 397 of IPC.
21. In the present case accused No.1 to 3 had entered the spot and nabbed Cellkon Mobile Phone and assaulted Pw-1 and 2 and also robbed cash of Rs.33,000/- from the cash locker. This version is stated by PW-1 as well as Pw-2 in their statement before the I.O. It is very essential to note that the accused No.1 to 3 are present at the time of committing the offence and accused No.4 and 5 are not present. It is very clear that Section 34 of IPC will not attract the offence under Section 397 of IPC to have common intention of the accused. Further that the nature and conduct of the accused No.4 and 5 are good which is stated by PW-1 and 2 in their chief examination as well as cross-examination. There is no iota of evidence against to bring home the accused No.4 and 5. 15 S.C. No:773/2014
22. Further, that PW-1 and 2 states that the accused No.1 to 3 are assaulted by PW-1 and 2 in their hands and Ex.P.16 and ExP.17 states that the injuries occurred to the victim are simple in nature. Even the weapon used to commit the offence is a Rinch spanner, its width is 2 inches and length is 12 inches and the said weapon is marked as MO-2 and MO- 2 is not having any sharp edges on both sides. Mere holding or using of these items of weapon has not caused grievous injury or death to any person. However, if the accused has not used deadly weapons or not caused grievous hurt or not attempted to cause death the offence under Section 397of IPC will not be attracted. Hence, accused No.1 to 5 are liable to be acquitted in the present case.
23. More so, though the accused No.1 to 3 have not used the deadly weapon but the question of robbing money and mobile is to be proved. PW-1 and 2 have clearly stated about the nabbing of the mobile and money from the possession of PW-1 and 2 is an offence under Section 392 of IPC. When the accused are less than five, the question of dacoity will not be arising as per Section 394 of IPC. If in case the accused are 16 S.C. No:773/2014 less than five, then we can call it as robbery punishable under Section 392 of IPC. In the present case there are three persons who entered the spot and committed robbery. Hence, the accused No.1 to 3 are liable to be punished under Section 392 and not under Section 397 of IPC.
24. Though, this court has not framed the charge under Section 392 of IPC, the punishment imposed under Section 397 is not less than seven years. If the accused are acquitted under Section 397 of IPC, for the reason that they have not caused grievous hurt to PW-1 and 2 of IPC. Section 392 of IPC is having minor punishment rather than the Section 397 of IPC. Section 397 is not an independent offence, it is a related offence either under Section 392 or 395 of IPC. Therefore, this court is having power to impose the punishment to the accused for minor punishment which is stipulated under Section 222(2) of Cr.P.C.
25. Section 222(2) clearly states that when a person is charged with an offence and facts are proved it reduced into minor offence, he may be convicted of the minor offence although he is not charge with it. At this stage, I am invoking 17 S.C. No:773/2014 the said provision and perused the records and evidence of PW- 1, 2 and PW-8.
26. PW-8 states in his evidence that on 24-10-2013 CW1 filed complaint before him, he registered the same in Cr.No. 186/13 & submitted FIR to the Court. Ex. P1 bears his signature. He further stated that he visited the scene of offence on the same day, conducted spot mahazar as per Ex. P2, over the place pointed out by CW1 in the presence of mahazar witnesses. At the time of mahazar, he seized one rinch spanner MO-2 which was used for commission of offence. On the very day he recorded the statements of CW3 & 4, who have stated before him as per Ex. P3 & 4 respectively. He further stated that he also recorded the statement of CW2, he deputed the staff members along with CW-24 to trace out the absconding accused. He arrested A1 to 3 & recorded their voluntary statements. As per their voluntary statements, he seized Rs. 5,000/- from the possession of A1, Rs.4,200/- from the possession of A2 & Rs. 3,700/- from the possession of A3 in the presence of panchas, CW7 & 8 by drawing mahazar as per Ex.P.11. He further stated that he recorded the statements of 18 S.C. No:773/2014 panch witnesses. On 30-10-2013 he produced A1 to 3 before Magistrate & took them to the Police custody for further investigation. On the very day CW19 to 21 produced A4 & 5 before him, he arrested & recorded their voluntary statements. On the very day in the presence of panch witnesses i.e., CW9 & 10 seized Rs.7,400/- from the possession of A4 & 5 by drawing mahazar as per Ex. P5, filed PF No. 106/13 & recorded the statements of panch witnesses. PW-5 gave statement before him as per Ex. P6. CW-22 gave report before him as per Ex. P12. On 31-10-2013 he filed requisition before Court for insertion of offence U/sec. 120(b) of IPC against A4 & 5. On the very day on the basis of voluntary statement given by him, A1 led myself, staff, & CW11 & 12 to his house & got produced the robbed mobile phone belonging to CW1 & he seized the same by drawing mahazar as per Ex.P.13, which bears his signature at Ex. P13(a) & filed PF No. 107/13. M.O.1 is the said mobile phone. On the very day as per the voluntary statement given by him, A2 led myself , staff & panch witnesses i.e. CW13 & 14 to his house & got produced the motor cycle which was used for committing offence & he seized the motor cycle by drawing mahazar as per Ex. P7, which bears his signature. CW13 gave 19 S.C. No:773/2014 statement before him as per Ex. P8. He filed PF No. 108/13 to that effect. On the very day he secured the presence of CW1 & 2 to the station where they identified A1 to 3 & the properties & he recorded their supplementary statements for having identified A1 to 3 & properties. He identify the portion of voluntary statements given by A1 & 2. On 26-02-2014 he obtained wound certificates of CW1 & 2 from the hospital. He identify the wound certificates & they have marked as Ex. P16 & 17. On 28-02-2014 he recorded the statement of CW-6 who produced a letter as per Ex.P.18 stating that A4 & 5 were working in his shop, along with CW1 &
2. He recorded the statements of staff i.e., CW16 to 21 & 23. After completing investigation he filed charge sheet against A1 to 5. He identify A4 who is present before Court and further stated that he can also identify other accused if shown to him.
27. It is sufficient to prove the guilt of offence punishable under Section 392 of IPC against the accused No.1 to 3. Inview of the above discussion, I have no hesitation to hold that the prosecution has failed to prove the guilt against the accused for the offence punishable under Section 120B, 397 of IPC R/w Section 34 of IPC. Further, as already observed, the prosecution has proved beyond al reasonable doubt that the 20 S.C. No:773/2014 guilt of the accused No.1 to 3 for the offence punishable under Section 392 of IPC is proved and they are liable for conviction for the said offence and the accused No.4 and 5 are liable to be acquitted. Hence, I answer Point No.1 to 3 in the negative and Point No.2 partly in affirmative [so far as accused No.1 to 3 are concerned in affirmative and accused No.4 and 5 are concerned in the negative].
28. Point No.4:- In the result, I proceed to pass the following;
ORDER Acting under Section 235(1) of Cr.P.C., accused No.1 to 5 are hereby acquitted of the charges leveled against them for the offences punishable under Section 120B and 397 R/w. Section 34 of IPC.
Acting under Section 235(2) of Cr.P.C., accused No.1 to 3 are hereby convicted for the charge leveled against them for the offence punishable under Section 392 of IPC.
Acting under Section 235(1) of Cr.P.C., accused No.4 and 5 are hereby acquitted for the charge leveled against then for the offence punishable under Section 392 of IPC.
Bail bonds and surety bonds against accused No.1 to 5 shall stand cancelled.
21 S.C. No:773/2014
HEARD ON SENTENCE
29. Heard the accused No.1 to 3 and the learned Public Prosecutor before passing the sentence. Accused No.1 to 3 have submitted that they are the sole earning members of their respective family, consisting of their age old parents, their parents are suffering from disease and their presence are concerned essential to look after their aged parents, hence prays to take lenient view.
30. The learned Public Prosecutor submitted that accused No.1 to 3 have committed heinous offence, which is against the public at large, therefore the learned Public Prosecutor submits that the accused are not entitled for leniency. Hence, prays for imposing maximum punishment.
31. On perusal of the facts and circumstances of the case and conduct of the accused and their age and also their family status and income for living the livelihood, their age old parents, if maximum sentence will be imposed their age old parents will be put to great inconvenience. Such being the case, I feel it is proper to take lenient view with regard to sentence. Hence, I proceed to pass the following; 22 S.C. No:773/2014
ORDER Acting under Section 235(2) of Cr.P.C., accused No.1 to 3 are hereby sentenced to under go rigorous imprisonment for a term of two years and to pay fine of Rs.5,000/- each and in default of payment of fine, to under go simple imprisonment for further period of three months for the offence punishable under Section 392 R/w. Section 34 of IPC.
The accused are entitled for set off for the period of custody undergone through the trial of this court.
Seized M.O 2 and 3 i.e mobile phones and seized amount be confiscated to government after expiry of appeal period.
Seized M.O 1 i.e knife being worthless be destroyed after expiry of appeal period.
Free copy of the judgment shall be furnish to accused No.1 to 3 forthwith.
(Dictated to the Stenographer, transcribed and typed by her, corrected by me and then pronounced by me in open court on this the 12th day of April, 2019) (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.
23 S.C. No:773/2014ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Mohana Kumar.V PW2 Gangaraj PW3 Saif PW4 K.Abdulla PW5 Syed Imran PW6 Faruq Pasha PW7 Pradeep Pujari PW8 R.S.T.Khan PW9 Dr.Shivashankar N.A.
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint
Ex.P.2 Spot mahazar
Ex.P.3 Statement of PW3
Ex.P.4 Statement of PW4
Ex.P.5 Seizure mahazar
Ex.P.6 Statement of PW5
Ex.P.7 Seizure mahazar
Ex.P.8 Statement of PW6
Ex.P.9 Report of PW7
Ex.P.10 FIR
Ex.P.11 Seizure mahazar
Ex.P.12 Statement of Cw22
Devaraj.HC4298
Ex.P.13 Seizure mahazar
Ex.P.14 Voluntary statement of A1
Ex.P.15 Voluntary statement of A2
Ex.P.16 Wound certificate of Mohan
Kumar
Ex.P.17 Wound certificate of
Gangaraju
Ex.P.18 Letter of employer
Ex.P.19 Photograph
24 S.C. No:773/2014
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution:
M.O.1 Mobile phone
M.O.2 Rinch Spanner
M.O.3 Cash of Rs.20,300/-
(Vidyadhar Shirahatti)
LX Addl. City Civil & Sessions Judge,
Bengaluru.