Bangalore District Court
The State Of Karnataka vs No.1 : Noorulla on 2 August, 2016
IN THE COURT OF THE LI ADDL. CITYF CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 2nd day of August 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 753/2013
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Kalasipalya Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused No.1 : Noorulla,
S/o Late Syed Hussain,
Aged 28 years,
R/a. No.138, Behind Abhiman
Talkies, Goripalya,
Bengaluru,
Accused No.2 : Younus,
S/o. Mohammed Abas,
Aged 25 years,
R/a. Tippu Chowk,
Corporation Kalyan Mantap,
Haleguddadahalli,
Mysuru Road,
Bengaluru.
Accused No.3 : Afroz Khan @ Afroz @ Raju
Coolie,
S/o. Ummar Khan,
Aged 26 years,
R/a. No.108, Padarayanapura,
Mysuru Road,
Bengaluru.
2 SC No.753/2013
Accused No.4 : Inayath,
S/o. Amanulla Khan,
Aged 25 years,
R/a. Adjacent to Urdu School,
Near Sangam Circle, Goripalya,
Padarayanapura, Mysuru Road,
Bengaluru.
(By Sri M. Shivaram, Advocate,
for A.2)
(By Sri Jameel Ahmed Sharief,
Advocate, for A.1 & A.4)
(By Sri C.B.Abdul Sab, Advocate,
for A.3)
1 Date of commission of offence 15.04.2012
2 Date of report of offence 19.04.2012
3 Date of arrest of the accused A.1 is produced under
body-warrant on
16.11.2012.
A.2 is produced under
body-warrant on
04.04.2013.
A.3 & A.4 = 09.04.2013.
4 Date of release of accused on bail 30.04.2013 = A.3.
14.06.2013 = A.4.
08.07.2013 = A.1.
11.04.2016 = A.2.
5 Date of commencement of 24.10.2013
evidence
6 Date of closing of evidence 19.01.2016
7 Name of the complainant Safeer
8 Offences complained of Sections 397 & 201 of
I.P.C.
9 Date of pronouncement of 02.08.2016
judgment
10 Opinion of the Judge Guilt of the accused
No's.1 to 4 not proved.
11 Order of Sentence As per final-order
JUDGMENT
This is a charge-sheet filed by the Police Inspector of Kalasipalya Police Station, Bengaluru City, leveling the charges against the above said accused persons for the commission of the 3 SC No.753/2013 offences punishable U/Sec.397 of I.P.C. in the committal VIII ACMM Court, Bengaluru City, in it's CC No.7986/2013 in connection with the Kalasipalya P.S. Cr.No.88/2012.
2. The epitomized facts of the allegations that are leveled against the above said accused persons in the charge-sheet run thus:
On 15.04.2012, at about 8.00 a.m., in the morning, on LBF Road, within the limits of Kalasipalya police station, Bengaluru City, when the CW.1/complainant was proceeding towards his house in Mavalli walking, the accused No's.1 to 4 having followed in a auto-rickshaw bearing No.KA-01-A-7883 unlawfully restrained the complainant from proceeding further by alighting from the said auto-rickshaw and took the said complainant inside the said auto-
rickshaw and also the accused No.2 pointing the dragor-knife on his abdomen, threatened to his life and thereby the accused persons robbed two Nokia mobiles, cash of Rs.4,000/-, ATM Card, Pan-Card and Driving Licence from the pockets of the complainant and attempted to cause the grievous hurt/death and thereafter, the accused persons have spent the said cash of Rs.4,000/- and sold the said mobile phones in Sunday Bazaar and threw-away the said ATM Card, Pan-Card and Driving Licence in the public-gutter and caused disappearance of the evidence by destroying the same and thereby, the accused No's.1 to 4 committed the offences punishable U/Secs.397 & 201 of I.P.C.4 SC No.753/2013
3. After filing the charge-sheet, cognizance of the offence punishable U/Sec.397 of I.P.C. was taken by VIII ACMM Court, Bengaluru City.
The accused No's.2 & 4 were in judicial custody right-since beginning, in view of they having arrested by the concerned police during the crime-stage and produced before the Committal VIII ACMM Court, Bengaluru City.
On moving for bail, the accused No.3 has been released on bail, as per the vide order dated 27.04.2013 in Crl.Misc.No.2256/2013 by the then FTC - XVII, Bengaluru City; and the accused No.1 has been released on bail, in view of grant of regular-bail on 28.12.2012 by the Committal VIII ACMM, Bengaluru City.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused persons by the VIII ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After committing the case to this court by the VIII ACMM Court, Bengaluru City, the notices were issued to the accused persons and secured their presence before this court. 5 SC No.753/2013
Thereafter, the accused No's.2 & 4 have been enlarged on bail, as per the vide order dated 27.04.2013 in Crl.Misc.No.2256/2013 by the then FTC - XVII, Bengaluru City.
After hearing both sides, charges for the offences punishable U/Secs.397 & 201 of I.P.C. were framed, and the same were read- over, and explained to the accused persons in the vernacular best- known to them.
The accused persons have denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused persons, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 7 and placed it's reliance on the documents marked at Exs.P.1 to P.5 in which Ex.P.1 is the complaint; Ex.P.1(a) is the signature of the P.W.1; Ex.P.2 is the mahazar; Ex.P.2(a) is the signature of the P.W.1; Ex.P.2(b) is the signature of the P.W.6; Ex.P.3 is the mahazar; Ex.P.3(a) is the signature of the P.W.2; Ex.P.3(b) is the signature of the P.W.7; Ex.P.4 is the report of P.W.5; Ex.P.4(a) is the signature of the P.W.5; Ex.P.4(b) is the signature of the P.W.7; Ex.P.5 is the voluntary statement of the accused and Ex.P.5(a) is the signature of the P.W.7, and the material object marked on behalf of the prosecution is at MO No.1 i.e., dragor- knife.
5. After the prosecution's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the 6 SC No.753/2013 prosecution witnesses, the statements of the accused persons under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsels for the accused persons.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on 15.04.2012, at about 8.00 a.m., in the morning, on LBF Road, within the limits of Kalasipalya police station, Bengaluru City, when the CW.1/complainant was proceeding towards his house in Mavalli walking, the accused No's.1 to 4 having followed in a auto-
rickshaw bearing No.KA-01-A-7883 unlawfully restrained the complainant from proceeding further by alighting from the said auto-rickshaw and took the said complainant inside the said auto-rickshaw and also the accused No.2 pointing the dragor-knife on his abdomen, threatened to his life and thereby the accused persons robbed two Nokia mobiles, cash of Rs.4,000/-, ATM Card, Pan-Card and Driving Licence from the pockets of the complainant and attempted to cause the grievous hurt/death and thereby, the accused No's.1 to 4 committed the offence punishable U/Sec.397 of I.P.C.?
(2) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused persons have spent the said cash of Rs.4,000/- and sold the said mobile phones in Sunday Bazaar and 7 SC No.753/2013 threw-away the said ATM Card, Pan-Card and Driving Licence in the public-gutter and caused disappearance of the evidence by destroying the same and thereby, the accused No's.1 to 4 committed the offence punishable U/Sec.201 of I.P.C.?
(3) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order,
for the following:
REASONS
9. Point No's.1 & 2:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1 & 2 together admixingly for discussion.
10. It is the specific tale of the prosecution that, on 15.04.2012, at about 8.00 a.m., in the morning, on LBF Road, within the limits of Kalasipalya police station, Bengaluru City, when the CW.1/complainant was proceeding towards his house in Mavalli walking, the accused No's.1 to 4 having followed in a auto- rickshaw bearing No.KA-01-A-7883 unlawfully restrained the complainant from proceeding further by alighting from the said auto-rickshaw and took the said complainant inside the said auto- rickshaw and also the accused No.2 pointing the dragor-knife on his abdomen, threatened to his life and thereby the accused persons robbed two Nokia mobiles, cash of Rs.4,000/-, ATM Card, 8 SC No.753/2013 Pan-Card and Driving Licence from the pockets of the complainant and attempted to cause the grievous hurt/death and thereafter, the accused persons have spent the said cash of Rs.4,000/- and sold the said mobile phones in Sunday Bazaar and threw-away the said ATM Card, Pan-Card and Driving Licence in the public-gutter and caused disappearance of the evidence by destroying the same and thereby, the accused No's.1 to 4 committed the offences punishable U/Secs.397 & 201 of I.P.C.
11. On meticulous perusal of the entire evidence of the prosecution in consideration with the documentations and evidence available on record, the absolute burden of proving the alleged imputations against the accused persons is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
12. To substantiate it's case, the prosecution has got examined PWs.1 to 7, in which CW.1 is examined as P.W.1, who is the complainant as-well-as the victim; CW.6 is examined as P.W.2, who is the eyewitness as-well-as the seizure of dragor mahazar witness; CW.8 is examined as P.W.3, who is the Police-Constable having accompanied the CW.17 who is the Police Inspector as-well- as the eyewitness; CW.11 is examined as P.W.4, who is the Police- Constable having traced-out the accused No's.3 & 4 and produced before the CW.17; CW.16 is examined as P.W.5, who is the PSI having traced the accused No's.3 & 4 and produced before the 9 SC No.753/2013 investigating officer; CW.2 is examined as P.W.6, who is the spot panchanama witness and CW.17 is examined as P.W.7, who is the suffixive partial investigating officer, and thereby, placed it's reliance on the documentation marked at Exs.P.1 to P.5, in which Ex.P.1 is the complaint, Ex.P.1(a) is the signature of the P.W.1, Ex.P.2 is the mahazar, Ex.P.2(a) is the signature of the P.W.1, Ex.P.2(b) is the signature of the P.W.6, Ex.P.3 is the mahazar, Ex.P.3(a) is the signature of the P.W.2, Ex.P.3(b) is the signature of the P.W.7, Ex.P.4 is the report of the P.W.5, Ex.P.4(a) is the signature of the P.W.5, Ex.P.4(b) is the signature of the P.W.7, Ex.P.5 is the voluntary statement of the accused and Ex.P.5 is the signature of the P.W.7, and the material object marked on behalf of the prosecution is at MO No.1 i.e., dragor-knife.
13. On meticulous perusal of the entire depositions of the PWs.1 & 7, it is crystal clear that, the P.W.1 being the complainant as-well-as the victim, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, originally, he is hailing from Kerala State and he is residing at Mavalli in Bengaluru, and about two years back, he has come to Bengaluru, for his education purpose and he is studying in MCA in Al-Ameen College. It is further stated by the P.W.1 that, on 15.04.2012, at 7.00 a.m., in the morning when he came from Kerala, he came to Shanthi Nagar Bus Stand and thereafter, while he was going to his residential place walking by holding two bags in his both hands 10 SC No.753/2013 through LBF Road, 4 persons came in a auto-rickshaw near the temple, there-at, and asked him to give the mobile, for which he refused and two persons held his arms and the other two persons shown the knife and robbed his two mobiles and purse/wallet, in which there was an amount of Rs.4,000/-, along-with ATM Card, driving-licence and identity and thereafter, they went in the said auto-rickshaw, and they use to speak in Kannada. It is further stated that, thereafter, he went to the traffic police and stated the registration number of the said auto-rickshaw, who ultimately sent him to the Kalasipalya police station. It is further stated that, since he had come to Bengaluru for the first-time, later-on, he having approached the Kerala Muslim Association thereafter, he lodged the complaint as per Ex.P.1, at their suggestions, on which his signature is as per Ex.P.1(a) and thereafter, the police visited the spot and drew the spot mahazar at his show as per Ex.P.2, on which his signature is as per Ex.P.2(a) and also he has identified the said dragor-knife used by the accused persons to threaten him, which is marked as per MO No.1 and also identified the accused No's.1 to 4 in the open-court, and further stated that, the said accused persons have stated before the police during the inquiry that, they have already sold the robbed material objects from him.
14. But, in the cross-examination by the learned counsel for the accused, he has stated to the effect that, he cannot read and write Kannada and the complaint was written by the police, but he 11 SC No.753/2013 does-not know the specific timing when it was written, whereas, he has volunteered that he knows the contents of the said complaint. It is further stated by the P.W.1 that, he has signed the Exs.P.1 & P.2 which are typed-complaint and spot mahazar, respectively. It is significant to note that, according to the prosecution and Ex.P.2, the P.W.1 had led the police by showing the spot of the incident and the signature of the P.W.1 finds place on Ex.P.2 as per Ex.P.2(a). If the said spot mahazar was to be drawn on the spot itself, I fail to understand as to how he has signed on the said Ex.P.2 in the police station? Therefore, it creates the suspicious circumstance with regard to the genuinity of Ex.P.2 in the mind of this court. It is further stated by the P.W.1 that, he has not handed-over the receipt pertaining to the said mobile handset having purchased by him. It is no doubt, the P.W.1 has stated even in the cross-examination that, for the first-time, he had come to Bengaluru, wherefore, he could not lodge the complaint immediately. But, however, it is fatally admitted by the P.W.1 in the cross-examination itself later-on that, after taking the admission in the college at Bengaluru, about 2 to 3 months later, the said incident had taken place. If that is so, then certainly it clearly goes to indicate that, it was not the first visit of the P.W.1 to Bengaluru, wherefore, his own admission certainly demolishes his earlier version that he had come to Bengaluru, for the first-time, wherefore, he could not lodge the complaint immediately. 12 SC No.753/2013 Therefore, it is crystal clear that, according to the prosecution and the P.W.1, the alleged incident had taken place on 15.04.2012 and the alleged complaint as per Ex.P.1 has been lodged on 19.04.2012, wherefore, there is four days inordinate delay in lodging the complaint, in respect of which, though the P.W.1 has endeavored to substantiate by way of giving the explanation, it has been falsified by his own admission given in the cross-examination by the learned counsel for the accused. Further, the P.W.1 has admitted in the cross-examination that, earlier he had seen the knife similar to the above MO No.1 in the films/movies and thereafter he has seen in the open-court on the date of his deposition. If this particular version of the P.W.1 is taken into consideration, it is clear that, at no point of time, the said MO No.1 has been seen by the P.W.1. When that is so, the question of seeing the MO No.1, by the P.W.1 at the time of the alleged incident, holding the same by two of the accused persons, as contended by the P.W.1 as-well-as the prosecution also, does-not arise at-all. Apart from the same, the P.W.1 has further stated that, he cannot say the boundaries of the alleged spot of the incident and also he does-not remember the date for having shown the accused persons to him, in the police station. If really the P.W.1 had shown the spot to the police and if really the said spot mahazar as per Ex.P.2 was drawn in presence of him, I fail to understand as to how the P.W.1 is incapable of saying the 13 SC No.753/2013 boundaries of the alleged spot of the incident? All these particular aspects which are emanating through the mouth of the P.W.1 in his cross-examination, are absolutely emanating in contravention with the very case of the prosecution creating the fatal doubts in the mind of this court with respect to the very genuinity of the alleged case of the prosecution and also regarding Ex.P.2 the alleged spot mahazar.
15. It is no doubt, the P.W.6 being the spot mahazar witness, has endeavored to depose in favour of the prosecution in his chief- examination in respect of drawing the said Ex.P.2 and his signature thereon, is as per Ex.P.2(b). But, if the said depositions of the PWs.1 & 6 are being analyzed in comparison with each- other, by virtue of the said fatal admission given by the P.W.1, the said Ex.P.2 the alleged spot mahazar still stands under the suspicious circumstances without the substantiality because, the P.W.1 being the complainant as-well-as the material witness to the prosecution, who is stated to have shown the alleged spot of the alleged incident to the police and also drawn the said Ex.P.2 on the spot itself by the police in presence of him, his versions in the cross-examination absolutely dismantle the very crux of the prosecution's case, wherefore, the entire deposition of the P.W.1 prevailing with the plethora of fatal admissions and major discrepancies, discrepanting the very case of the prosecution, it 14 SC No.753/2013 does-not deserve for relying and believing-upon, as it does-not come to the aid of the prosecution, in any way.
16. Further, the P.W.2 being the eyewitness as-well-as the seizure of the dragor mahazar witness though endeavored to speak in favour of the prosecution to some extent to the effect that, originally, he is from Kodagu District and about two months back, he was called by the police to the Kalasipalya police station, where- at, two persons were shown to him by the police in their custody and the said persons are in the open-court, who are none-other than the accused No's.2 & 3, in respect of which, the said accused No's.2 & 3 were held by the police in connection with they having committed the dacoity and he has seen the MO No.1 in the hands of the accused, near the Lalbagh gate when the P.W.1 was coming walking, in respect of which, since he had no any acquaintanceship with the P.W.1, he had not inquired. But, later- on, he had seen the MO No.1/dragor-knife in the police station. Thereafter, the P.W.2 has turned hostile partly, wherefore, the learned Public Prosecutor was inclined to cross-examine him, wherefore, he was able to succeed only taking the admission in respect of himself and the CW.7 by name Abu Tahir were called by the Kalasipalya police to the police station on 09.04.2013 at 10.30 a.m., in the morning. But, in respect of the other aspects, he has not at-all supported the prosecution's case, whereas, the learned Public Prosecutor has failed to elicit and extract the substantial 15 SC No.753/2013 material through his mouth with respect to drawing of Ex.P.3 and signing by him in the house of the accused No.2, wherefore, the prosecution has utterly failed to establish Ex.P.3 beyond the shadow of all the reasonable doubts. In addition to the same, in the cross-examination by the learned counsel for the accused, he has clearly stated that, he can clearly speak Kannada, but cannot read. In overall, the very deposition of the P.W.2 also does-not come to the aid of the prosecution in any manner, whereas, the prosecution has utterly failed to establish Ex.P.3 beyond the shadow of all the reasonable doubts.
17. Further, the P.W.3 being the Police-Constable having accompanied the CW.17/Police Inspector as-well-as the eyewitness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 12.08.2012, at about 9.30 p.m., while he was on duty in the police station, the CW.17/Police Inspector called him, CWs.9 to 13 and two panhas, stating that he has received the credible information that, some unknown 5 persons holding the deadly-weapons are hatching the plan for the purpose of dacoity near the Corporation Bank, Kumbarugundi Road, Bengaluru City, and thereby took them to the said spot and after getting confirmed the said information as true on the spot, they altogether raided on the said persons, out of whom, they were able to catch-hold 4 persons and one person ran- away there-from and he caught-hold the accused No.3, along-with 16 SC No.753/2013 the rod with him and the other police-staff, along-with the CW.17 caught-hold the other accused persons, with whom, wooden-club, knife and a packet full of chilly-powder were there, and the name of the accused persons are Noorulla, Shafi Khan, Afzal and Parashuram, and the person who had ran-away was one Inayath and thereafter, after seizing the material objects possessed by the said accused persons on the spot, they came to the police station; and he has identified the accused No.1-Noorulla whom they had caught-hold on the spot and the accused No.4 by name Inayath who had run-away from the spot on that day, in the open-court.
18. But, in the cross-examination by the learned counsel for the accused, he has clearly disclosed his incapability to say regarding the distance maintained by him to watch and see the accused persons prior to the raid-upon them and also regarding the boundaries of the said alleged spot of the incident and further disclosed his non-remembrance of the name of the panchas who had come along-with them. All these versions clearly go to lead this court to suspect regarding the P.W.3 as to whether he had actually accompanied the CW.17 to the alleged raid purpose because, if really he had been to the spot, he was expected to know all the details with respect to the alleged spot of the incident and whisper the same in the witness-box. But, unfortunately, he has depicted his incapability which certainly fatals to the very crux of the prosecution's case. In addenda of the same, he has stated 17 SC No.753/2013 that, the said Ex.P.2/spot mahazar was drawn on the spot itself between 10.30 p.m., and 11.30 p.m., in the night. But, according to Ex.P.2, which is the spot mahazar, it has been drawn between 5.00 p.m., and 5.45 p.m., in the evening, wherefore, the said versions of the P.W.3 in respect of the timings stated by him, compare to the timings mentioned in Ex.P.2 being absolutely emanating in contravention with each-other, it certainly creates the absolute suspicion with respect to the very genuinity of the Ex.P.2 and also the P.W.3 allegedly said to have accompanied the CW.17 to the alleged raid purpose, since the entire deposition of the P.W.3 is prevailing with the plethora of fatal contradictions and major discrepancies, wherefore, the very deposition of the P.W.3 does-not come to the aid of the prosecution, in any manner.
19. Further, the P.W.4 being the Police-Constable having traced-out the accused No's.3 & 4 and produced before the CW.17/Police Inspector, has endeavored to depose in favour of the prosecution in his chief-examination, accordingly.
20. Even, the P.W.5 being the PSI having traced-out the accused No's.3 & 4 and produced before the CW.17/Police Inspector, together with P.W.4, has also endeavored to depose in favour of the prosecution, in respect of they having nabbed the accused No's.3 & 4 and produced them before the CW.17/Police Inspector, accordingly, and given the report to that effect as per Ex.P.4, on which his signature is as per Ex.P.4(a) and also both the 18 SC No.753/2013 PWs.4 & 5 have identified the said accused No's.3 & 4 in the open- court during their evidence.
21. But, in the cross-examination by the learned counsel for the accused, the P.W.4 has stated that, when they had left the police station for searching the said accused No's.3 & 4, it was about 3.30 p.m., in the afternoon and they reached the spot at 5.00 p.m., in the evening. But, the P.W.5 has stated in his cross- examination that, when they had left the police station, it was about 7.15 p.m., in the evening and they had been to the spot in the police vehicle, which is at about 3 kilometers away from their police station, along-with the police staff in the said auto-rickshaw on the spot, in which the accused and himself were also present. On comparative analysis of the said versions of the PWs.4 & 5, it is clear that, they are absolutely emanating in contravention with each-other despairingly without any synchronization. Apart from the same, the very versions of the P.W.4 in his cross-examination, are emanating in two disjunctive manner creating the fatal doubts in the mind of this court because, at one point of interval, he has stated that, he was in the said auto-rickshaw along-with his police staff and the accused on the spot, but, at another point of time, he has stated that, they had come to the spot of the incident in the police jeep. But, according to the very versions of the P.W.4 in the cross-examination, they had come to the spot in the auto- rickshaw. Therefore, all these versions of the PWs.4 & 5 are 19 SC No.753/2013 emanating in contravention with each-other creating the fatal doubts in the mind of this court with respect to the very crux and genuinity of the prosecution's tale, wherefore, by virtue of the said versions of the PWs.4 & 5, no creditworthiness can be adhered to their depositions, meaning-thereby, the very depositions of the PWs.4 & 5 do-not come to the aid of the prosecution, in any manner.
22. Further, the P.W.7 being the suffixive partial investigating officer, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 12.08.2012, at about 9.45 p.m., in the night, he having received the credible information that, about 4 to 5 persons having unlawfully assembled with the deadly-weapons with an intention to commit dacoity on the public who pass there-from near Kumbaragundi Road, opposite to Corporation within the limits of Kalasipalya police station, he having secured his police staff i.e., the CWs.8 to 13 with two panchas proceeded towards the said spot of the incident and after getting confirmed by watching for a while that the said 4 to 5 persons who are present there-at, were hatching the plan for committing the dacoity, accordingly, and thereby, altogether raided them, whereby, himself and CW.9 caught-hold the accused No.1/Noorulla and the other police-staff caught-hold the other accused persons, out of whom, the accused No's.1 to 4 were also nabbed by them; But, one person has ran- 20 SC No.753/2013 away there-from, by name Inayath and thereafter, he has seized the packet full of chilly-powder, one wooden-club, one iron-rod and one steel-knife and produced the same, along-with the accused No's.1 to 4 before the then Station House Officer, basing on which, the Cr.No.195/2012 was registered against them for the offences punishable U/Secs.399 & 402 of I.P.C. It is further stated by the P.W.7 that, during the investigation by the investigating officer in the said Cr.No.195/2012, the accused No.1/Noorulla has disclosed the names of the accused No's.2 to 4 and another person by name Ajju contending that, they altogether had committed the dacoity, in respect of which, this case has been registered and accordingly, he had given his voluntary statement before the said investigating officer. It is further stated by the P.W.7 that, on 20.04.2012, he received the entire case-file of this case under Cr.No.88/2012 from CW.16 for the purpose of further investigation and thereafter, the accused No.2 who was in judicial custody in some other chain- snatching case, he was taken to the police custody with the permission of the court on 06.04.2013 and he having been inquired the said accused No.2 has admitted that himself and accused No's.1, 3 & 4 together had committed the dacoity in connection with this case and accordingly, he has given his voluntary statement as per Ex.P.5, on which his (P.W.7) signature is as per Ex.P.5(a); and on 08.04.2013, the CW.16 having nabbed the accused No's.3 & 4, produced before him and submitted the 21 SC No.753/2013 report to that effect as per Ex.P.4, on which his signature is as per Ex.P.4(b) and on 09.04.2013, the accused No.2 by name Younus having given his voluntary-statement, in pursuance of which he led him (P.W.7), the police staff and panchas to his house bearing No.121, situated at 6th Cross, Arfath Nagar, Old Guddadahalli, J.J.Nagar, Bengaluru City, and produced an iron-dragor as per MO No.1 before him, which was seized by him in presence of the mahazar witnesses as per Ex.P.3 between 10.30 a.m., and 11.30 a.m., in the morning, on which his signature is as per Ex.P.3(b) and thereafter returning-back to the police station, he has got converted the said MO No.1 into the PF No.55/2013 and on the same day, by securing the complainant, he has got identified the said accused persons through the complainant and recorded his additional statements and accordingly, on the same day, he has also got identified the auto-rickshaw through the CW.1/complainant, used by the accused persons for the commission of dacoity and accordingly, he has identified the same, which has been converted into PF No.98/2012; and thereafter, on 04.09.2013, he has secured the copies of the statements of the CWs.8 to 10, 12 & 13 in Cr.No.195/2012 in this case. It is further stated by the P.W.7 that, the robbed amount, mobiles, debit-card and etc., were not available, since the accused persons have admitted that, they had already sold the mobile-sets in Sunday Bazaar and threw the Driving Licence, ATM Card and etc., in the 22 SC No.753/2013 gutter; and on completion of the investigation on 16.04.2013, he having found sufficient material against the accused persons for having committed the offence of dacoity, he has submitted the charge-sheet before the court.
23. During the time of trial, the learned Public Prosecutor has voluntarily given-up the CWs.9, 10, 10(a) & 12 to 15. Despite of having issued sufficient process to the CWs.3 to 5 & 7, who are the spot mahazar witnesses in this case, the raid mahazar pancha in Cr.No.195/2012 and the seizure mahazar witness, respectively, they have absolutely failed to turn-up before this court and depose in favour of the prosecution in the witness-box and even the concerned police has utterly failed to secure them, wherefore, this court was inclined to reject the prayer of the learned Public Prosecutor in the absence of the substantial grounds and dropped the said CWs.3 to 5 & 7 and thereby, closed the prosecution's side.
24. On meticulous consideration of the entire depositions of the PWs.1 to 7, it is crystal clear that, the very deposition of the P.W.2, who is none-other than the seizure of dragor mahazar witness having turned hostile to the prosecution's tale, it has utterly failed to establish Ex.P.3 through the mouth of the P.W.2, wherefore, his deposition does-not come to the aid of the prosecution, in any manner. Further, the P.W.1 being the complainant as-well-as the victim, though endeavored to depose in favour of the prosecution in his chief-examination, by virtue of his 23 SC No.753/2013 version in the cross-examination in comparison with the very deposition of P.W.6, who is stated to be the spot mahazar witness, the entire deposition of the P.W.1 certainly stands as the worthless in view of his fatal admissions and major discrepancies creating the fatal suspicious in the mind of this court and also in view of lack of substantiality in respect of the explanation of the inordinate delay in lodging the complaint by the P.W.1. On comparative analysis of the depositions of the PWs.4 & 5, they are absolutely emanating without any creditworthiness, since they are prevailing with the plethora of the major contradictions creating the fatal doubts in the mind of this court, wherefore, they do-not deserve for relying-upon. Even, the very deposition of the P.W.3 is also emanating with certain evasive answers given by him, which certainly goes to the very root of the prosecution. To put-into simple terms, the entire depositions of the PWs.1 to 5 are absolutely prevailing with the plethora of major discrepancies, admissions, contradictions and etc., discrepanting the very crux of the prosecution's tale creating the fatal doubts in the mind of this court, wherefore, they do-not prevail adhering-with any creditworthiness to rely-upon the same. Merely basing on the very deposition of the PWs.6 & 7 who are the spot mahazar witnesses as-well-as the suffixive partial investigating officer coupled-with Exs.P.1 to P.5 and MO No.1, this court cannot arrive at a conclusion to target the accused persons for the conviction, in the 24 SC No.753/2013 lack of substantial chunk of the material on record, in favour of the prosecution.
25. Therefore, under all these circumstances, I am of the clear opinion that, the entire case of the prosecution is prevailing with the major discrepancies, discrepanting the entire case of the prosecution, creating the fatal doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused persons by virtue of a well- settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused persons. Therefore, in view of all these reasons, I am of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No's.1 & 2 beyond the shadow of all the reasonable doubts. Hence, I am inclined to answer Point No's.1 & 2 in the 'Negative'.
26. Point No.3:- For the reasons discussed at much-length while answering the Point No's.1 & 2 in the Negative, herein before supra, I am inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the accused No's.1 to 4, and therefore, the accused No's.1 to 4 are found not guilty for having committed the offences U/Secs.397 & 201 of I.P.C.25 SC No.753/2013
In exercise of the powers conferred-upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.1 by name Noorulla, S/o. Late Syed Hussain, Aged 28 years, Residing at No.138, Behind Abhiman Talkies, Goripalya, Bengaluru; the Accused No.2 by name Younus, S/o. Mohammed Abas, Aged 25 years, Residing at Tippu Chowk, Corporation Kalyan Mantap, Haleguddadahalli, Mysuru Road, Bengaluru; the Accused No.3 by name Afroz Khan @ Afroz @ Raju Coolie, S/o. Ummar Khan, Aged 26 years, Residing at No.108, Padarayanapura, Mysuru Road, Bengaluru; and the Accused No.4 by name Inayath, S/o. Amanulla Khan, Aged 25 years, Residing at Adjacent to Urdu School, Near Sangam Circle, Goripalya, Padarayanapura, Mysuru Road, Bengaluru, and set them to liberty forthwith in this case.
The Accused No's.1, 2, 3 & 4 are hereby discharged of their bail-bonds, along-with their respective sureties.
The seized-property marked at MO No.1, namely, one dragor-knife, is hereby ordered to be confiscated to the Government of Karnataka after the efflux of the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 2nd day of August, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.26 SC No.753/2013
APPENDIX List of the witnesses examined for the prosecution-side:
P.W.1 Safir P.W.2 Saifuddin P.W.3 Srinivas P.W.4 Dadapeer P.W.5 Naveen G.M. P.W.6 Mohid P.W.7 Narayanaswamy V.
List of documents exhibited for the prosecution-side:
Ex.P.1 Complaint.
Ex.P.1(a) Signature of the P.W.1.
Ex.P.2 Mahazar.
Ex.P.2(a) Signature of the P.W.1.
Ex.P.2(b) Signature of the P.W.6.
Ex.P.3 Mahazar.
Ex.P.3(a) Signature of the P.W.2.
Ex.P.3(b) Signature of the P.W.7.
Ex.P.4 Report of the P.W.5.
Ex.P.4(a) Signature of the P.W.5.
Ex.P.4(b) Signature of the P.W.7.
Ex.P.5 Voluntary statement of the accused. Ex.P.5(a) Signature of the P.W.7.
List of material-objects marked for the prosecution-side:
MO.1 One dragor-knife.
List of witnesses examined for the defence-side:
- NIL -
List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.27 SC No.753/2013
(Judgment pronounced in the open- court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the accused No's.1 to 4, and therefore, the accused No's.1 to 4 are found not guilty for having committed the offences U/Secs.397 & 201 of I.P.C.
In exercise of the powers conferred-upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.1 by name Noorulla, S/o. Late Syed Hussain, Aged 28 years, Residing at No.138, Behind Abhiman Talkies, Goripalya, Bengaluru; the Accused No.2 by name Younus, S/o. Mohammed Abas, Aged 25 years, Residing at Tippu Chowk, Corporation Kalyan Mantap, Haleguddadahalli, Mysuru Road, Bengaluru; the Accused No.3 by name Afroz Khan @ Afroz @ Raju Coolie, S/o. Ummar Khan, Aged 26 years, Residing at No.108, Padarayanapura, Mysuru Road, Bengaluru; and the Accused No.4 by name Inayath, S/o. Amanulla Khan, Aged 25 years, Residing at Adjacent to Urdu School, Near Sangam Circle, Goripalya, Padarayanapura, Mysuru Road, Bengaluru, and set them to liberty forthwith in this case. The Accused No's.1, 2, 3 & 4 are hereby discharged of their bail-bonds, along-with their respective sureties. The seized-property marked at MO No.1, namely, one dragor-knife, is hereby ordered to be confiscated to the Government of Karnataka after the efflux of the appeal period. LI Addl. City Civil & Sessions Judge, Bengaluru City. 28 SC No.753/2013