Bangalore District Court
State By; vs In 1. Mohammed Tanveer @ Tannu Boss on 1 February, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 1st day of February 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1052/2016
AND
SESSION CASE No.1379/2016
COMPLAINANT : State By;
Koramangala Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED IN 1. Mohammed Tanveer @ Tannu Boss
S.C.1379/16: S/o Noor Basha,
Aged about 21 years,
Residing at 2nd Main, 5th Cross,
Near Ukba Masjid, Sarapalya,
Nagawara, Bengaluru.
ACCUSED IN 2. Deepak S/o Late.Vijay Kumar
S.C.1379/16: Aged about 37 years,
Residing at No.28, Near Petrol Bunk,
Gummana Choultry, Anepalya,
Adugodi, Bengaluru.
ACCUSED IN 3. Shiva S/o Ganesha,
S.C.1379/16: Aged about 28 years,
Residing at No.24,
1st Main, 5th Cross,
Vinayaka Nagara,
2 S.C.1052/2016 &
S.C.1379/2016
Wilson Garden, Bengaluru.
ACCUSED IN 4. Muthabbeer Ali @ Ali
S.C.1052/16 S/o Hyder Ali,
Aged about 21 years,
Residing at No.475,
2nd Cross, Near Mekka Masjid,
Modi Road, Kavalbhyarasandra,
Bengaluru.
5. Syed Sadiq Pasha .......Split-up
(Accused No.1, 2 & 3 by Sri.G.K.S.
Accused No.4 by Sri.S.S.A., Advocates)
1. Date of commission of offence 22-11-2015
2. Date of report of occurrence 22-11-2015
3. Date of commencement of evidence 30-12-2016
4. Date of closing of evidence 13-01-2017
5. Name of the complainant Sri.Nataraj D.N.
6. Offences complained of Sec.399, 402 I.P.C.
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
COMMON JUDGMENT
These cases are committed by the VIII Chief
Metropolitan Magistrate Court, Bangalore City, to the Hon'ble
Prl. City Civil and Sessions Court, Bangalore on the ground
3 S.C.1052/2016 &
S.C.1379/2016
that offences punishable under Sec.399, 402 of IPC are
exclusively triable by the court of Sessions.
2. The Police Inspector of Koramangala Police Station
has filed charge-sheet against accused for the offences under
Sec.399, 402 I.P.C. arising out of Koramangala Police Station
in Crime No.670/2015.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1 who is the
Police Sub-Inspector of Koramangala Police Station on 22-10-
2015 at about 08.40 p.m. when in the Police Station, received
a credible information stating that within the limits of his
Police Station at NGV, abetting to CPWD quarters in the open
space, 4-5 persons assembled armed with deadly weapons
and making preparation to commit dacoity of the commuters.
CW.1 has called CW.4 to 8-officials and CW.2, 3-Panchas and
informed the information received by him to them, thereafter
CW.1 along with his officials and Panchas came near the spot
and stopped some distance away from the spot and watched
the spot, on the spot 4-5 persons assembled armed with
deadly weapons and talking among themselves, CW.1 has
4 S.C.1052/2016 &
S.C.1379/2016
confirmed the information as correct thereafter CW.1 and his
officials have conducted raid in presence of Panchas and
catch-hold 4 persons, one persons ran away. CW.1 has
enquired the said persons, they told their names and
addresses, they told the name of the person ran away as Syed
Sadiq. CW.1 has drawn Mahazar and seized the deadly
weapons in presence of Panchas, thereafter CW.1 has brought
the said persons along with the properties seized to the Police
Station, prepared Report and submitted the Report before
CW.11 and produced the said persons and properties seized
from them before CW.11.
3(a) CW.11 who is the Police Sub-Inspector of
Koramangala Police Station on 22-11-2015 at 11.15 p.m.,
when in the Police Station, CW.1 came along with his officials,
accused persons, properties seized from them, prepared a
Report and submitted the Report before CW.11. CW.11 on the
basis of the Report submitted by CW.1 registered a case in
Crime No.670/2015 and submitted FIR to the court. CW.11
has subjected the properties produced before him in
P.F.205/2015, CW.1 has arrested accused No.1 to 4 and
5 S.C.1052/2016 &
S.C.1379/2016
recorded their voluntary statements. On the same day CW.11
has recorded the statements of CW.2 to 10. Thereafter CW.11
has made efforts to catch-hold accused No.5, accused No.5
was absconding, so CW.11 has filed charge-sheet against the
accused.
4. After filing the charge-sheet by the Investigating
Officer, VIII Addl.Chief Metropolitan Magistrate Court,
Bengaluru has taken cognizance and registered the case in
C.C.10161/2016 and secured the presence of accused.
Thereafter, VIII Addl. City Metropolitan Magistrate Court,
Bengaluru has secured the presence of accused No.1 to 4,
even though VIII Addl. City Metropolitan Magistrate Court,
Bengaluru has issued NBW's against accused No.5 on several
occasions, the same returned unexecuted, so VIII Addl. City
Metropolitan Magistrate Court, Bengaluru has splitted the case
against accused No.5 and directed the Investigating Officer to
file separate charge-sheet against accused No.5. The VIII
Addl. City Metropolitan Magistrate Court, Bengaluru furnished
charge-sheet copies to accused as contemplated under
Sec.207 of Cr.P.C. and committed the case against accused
6 S.C.1052/2016 &
S.C.1379/2016
before the Hon'ble Prl. City Civil and Sessions Court,
Bangalore and that was registered as S.C.1052/2016 and
made over to this court as the offences alleged against the
accused under Sec.399, 402 of I.P.C. are exclusively triable by
the Sessions Court.
5. After receipt of the papers this court has secured
presence of accused No.4, even though NBW's came to be
issued on accused No.1 to 3 on several occasions, the same
returned unexecuted and as delay is causing due to non-
execution of NBW's, against accused No.1 to 3 this court has
splitted the case against accused No.1 to 3 and directed the
office to call separate charge-sheet against accused No.1 to 3
and register separate case against them.
6. As per the directions given by this court in
S.C.1052/2016 dated 09-11-2016, office has called separate
charge-sheet against accused No.1 to 3 and registered case in
S.C.1379/2016 and made over the case before this court for
disposal according to law as the offences alleged against the
accused are exclusively triable by the court of Sessions.
7 S.C.1052/2016 &
S.C.1379/2016
7. Thereafter, as S.C.1052/2016 and S.C.1379/2016
are arising out of Koramangala Police Station Crime
No.679/15, both cases are clubbed and it is ordered that
common evidence is to be recorded in S.C.1052/2016 and
dispose off both the cases by this common judgment.
8. After securance of the accused in both the cases,
heard the counsel for accused and learned Public Prosecutor
for state on charge to be framed. Charge under Sec.228 of
Cr.P.C. framed against the accused for the offences under
Sec.399, 402 of I.P.C. and read-over to the accused in the
open court and accused pleaded not guilty and claim to be
tried. Thereafter, Prosecution is called upon to prove the guilt
of the accused by examining the Prosecution witnesses.
9. Prosecution in order to prove the guilt of the
accused beyond all reasonable doubt in all examined 4
witnesses as PW.1 to 4, got marked 4 documents as per Ex.P1
to 4 and marked the 4 material objects as MO.1 to 4.
Thereafter, prosecution has closed its side. Accused are
examined under Sec.313 Cr.P.C. to enable them to explain the
incriminating circumstances appearing against them in the
8 S.C.1052/2016 &
S.C.1379/2016
prosecution evidence. Accused denied the statement in toto
and further stated that they have no defence evidence and
they have nothing to say, thereafter the case is posted for
arguments.
10. Heard the arguments advanced by the learned
counsel for the accused and learned Public Prosecutor for state
in length.
11. The points that arise for my determination are:
1) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 4 along
with accused No.5 on 22-11-2015 at 8.40 p.m.,
within the limits of Koramangala Police Station
Main Road at NGV abetting to CPWD quarters in
the open space, formed unlawful assembly by
holding deadly weapons and making preparation
to commit dacoity of the commuters and thereby
accused have committed the offence under
Sec.399 of IPC?
2) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 4 along
with accused No.5, on the above said date, time
and place, assembled armed with deadly weapons
9 S.C.1052/2016 &
S.C.1379/2016
in order to commit dacoity and thereby
committed the offence punishable under Sec.402
of IPC?
3) What order?
12. My findings on the above points are as follows:
Point No.1 & 2 : In the Negative;
Point No.3 : As per final order
For the following;
REASONS
13. POINT No.1 AND 2: The above points are
connected, hence they are taken up together for discussion
together.
13. It is the case of the prosecution that the accused
have committed the offences punishable under Sec.399, 402 of
I.P.C. and in order to prove the guilt of the accused the
prosecution in all examined 4 witnesses and they are;
PW.1-Rudrappa Girikar son of Late.Nimbanna-
Investigating Officer, PW.2-Rachaiah A.C. son of Choodaiah-
Head Constable, PW.3-Biju John son of P.V.John-Pancha on
10 S.C.1052/2016 &
S.C.1379/2016
spot cum Seizure Mahazar Panchanama, PW.4-B.N.Nataraj son
of Narasimhappa-complainant.
14. The prosecution in order to prove guilt of the
accused in all got marked 4 documents and they are;
Ex.P1-Spot cum Seizure Mahazar, Ex.P2-Complaint,
Ex.P3-FIR, Ex.P4-P.F.205/2015.
15. The prosecution in order to prove guilt of the
accused in all got marked 4 Material Objects and they are;
MO.1-Iron Rod, MO.2-Club, MO.3-Chilly powder pocket,
MO.4-Knife.
16. Prosecution in order to prove the guilt of the
accused beyond reasonable doubt examined PW.2. PW.2 in his
evidence stated that in the year 2015 he was working as Police
Constable at Koramangala Police Station. On 22-11-2015 at
8.45 p.m. CW.1 called him, CW.4, 6 to 10 and told that he has
received information stating that within the limits of
Koramangala Police Station at NGV, abetting to CPWD
quarters, 4-5 persons assembled armed with deadly weapons
and making preparation to commit dacoity of the commuters
thereafter CW.1 also called CW.2 and 3-Panchas and given
11 S.C.1052/2016 &
S.C.1379/2016
information to them thereafter they, CW.1 and Panchas came
near the spot and stopped some distance away from the spot
and watched the spot, on the spot 5 persons were assembled
armed with deadly weapons and talking among themselves,
CW.1 has confirmed the information received as correct,
thereafter they have conducted raid and catch-hold 4 persons,
one person ran way. He catch hold one person and he told his
name as Shivu and he was possessing chilly powder pocket.
CW.1 and 9 have catch-hold one person and he told his name
as Mohammed Tanveer and he was possessing one Iron Rod.
CW.4 has catch-hold one person and he told his name as
Deepak and he was possessing one Club. CW.7 has catch-hold
one person and he told his name as Muttabbeer and he was
possessing one Knife. The said person told the name of the
person ran away as Syed Sadiq. Thereafter, CW.1 has drawn
the Mahazar there and seized the deadly weapons in presence
of Panchas thereafter they have brought the said persons
along with the properties seized to the Police Station, CW.1
has submitted the Report and identified the properties seized
as MO.1 to 4. This witness has been cross-examined by the
12 S.C.1052/2016 &
S.C.1379/2016
counsel for the accused and in the cross-examination this
witness has admitted that on that day when CW.1 was called
he was on patrolling duty at 6th Block, Koramangala, whereas
CW.1 who has been examined as PW.4 in this case in his
cross-examination stated that CW.4 to 10 were in the Police
Station itself on that day, which is contrary to the evidence of
this witness. Further this witness has admitted that he cannot
say what colour dresses were worn by the said persons on that
day.
17. Prosecution has examined PW.3 and PW.3 is the
Pancha who alleged to have accompanied the complainant for
raid. He in his evidence stated that on 22-11-2015, CW.1
called him and CW.2, 3 at 8.45 p.m. to the Police Station and
CW.1 told him that dacoity is going on at NGV and they have
to go there and on that day he, CW.1, 4-5 Police officials and
CW.3 came to NGV near CPWD quarters and there 4-5 persons
were standing by holding deadly weapons, Police have catch-
hold 4 persons, one person ran away and the said persons
were possessing Clubs. Further this witness has stated that he
cannot say whether the 4 persons catch-hold by the Police are
13 S.C.1052/2016 &
S.C.1379/2016
before the court or not. Further this witness has stated that
he has not seen the CW.1 enquiring the said persons. Police
have obtained his signature there and identified his signature
on Ex.P1 as Ex.P1(a). Further this witness has stated that on
that day he has seen MO.1 to 4-articles with the Police, he is
not knowing how the Police came in possession of MO.1 to 4-
articles. Prosecution treated this witness hostile, cross-
examined him and this witness has denied that Police have
enquired the said 4 persons catch-hold by them and they have
told their names and they also told the name of the person ran
away as Sadiq Pasha. The counsel for the accused has cross-
examined this witness and in the cross-examination this
witness has admitted that he is not knowing what is written in
Ex.P1-Mahazar, he is not knowing who has written Ex.P1-
Mahazar. Further this witness has stated that he cannot give
the boundaries of the spot of incident. Further this witness
has admitted that he has seeing the accused persons present
before the court first time, he has not seen them earlier.
Further this witness has stated that he has seen MO.1 to 4-
articles in the Police Station, he has not seen the said articles
14 S.C.1052/2016 &
S.C.1379/2016
on the spot. So the evidence of this witness no where help the
prosecution to prove the conducting of raid and drawing of
Ex.P1-Mahazar and seizure of MO.1 to 4-articles.
18. Prosecution has examined PW.4. PW.4 in his
evidence stated that in the year 2015 he was working as Police
Sub-Inspector at Koramangala Police Station. On 22-11-2015
at 8.40 p.m. when he was in the Police Station, he received
credible information stating that within the limits of his Police
Station at NGV abetting to CPWD quarters in the open space,
4-5 persons assembled armed with deadly weapons and
making preparation to commit dacoity. Thereafter, he called
CW.4 to 6-officials and given information received by him to
them. Thereafter he, his officials and Panchas came near the
spot, they stopped some distance away from the spot and
watched the spot, on the spot 4-5 persons assembled armed
with deadly weapons and talking among themselves regarding
committing of dacoity of the commuters. He has confirmed
the information as correct and at 9.45 p.m. they have
conducted raid and catch-hold 4 persons and one person ran
away. He and CW.9 have catch-hold a person and he has told
15 S.C.1052/2016 &
S.C.1379/2016
his name as Mohammed Tanveer and he was possessing iron
rod, CW.4 and 8 have catch-hold one person and he told his
name as Deepak and he was possessing one Club, CW.5 and 6
have catch-hold one person and he told his name as Shiva and
he was possessing chilly powder pocket, CW.7 and 8 catch-
hold one person and he told his name as Muthabeer Ali and he
was possessing one Club. They told that they assembled there
for committing dacoity of the commuters. They also told the
name of the person ran away as Syed Sadiq Pasha. Thereafter
he has drawn Mahazar and seized the deadly weapons in
presence of Panchas and thereafter he and officials have
brought the said persons along with the properties seized to
the Police Station, he has prepared the Report and submitted
the Report before the CW.11. He has produced the said
properties and persons before CW.11 and identified the
properties seized by this court as MO.1 to 4. This witness has
been cross-examind and in the cross-examination this witness
has admitted that on that day CW.4 to 10 were in the Police
Station when he has received the information, which is
contrary to the evidence of PW.2. Further this witness has
16 S.C.1052/2016 &
S.C.1379/2016
stated that he cannot say what colour dresses were worn by
the said persons on that day.
19. Prosecution has examined PW.1. PW.1 in his
evidence stated that in the year 2015 he was working as Police
Sub-Inspector at Koramangala Police Station. On 22-11-2015
at 11.15 p.m. when he was in the Police Station CW.1 came
along with the 4 persons and properties seized from them and
produced the said persons and properties seized by him and
submitted the Report and on the basis of the Report he has
registered the case in Crime No.670/2015 and submitted FIR
to the court. Thereafter, he has submitted the properties in
P.F.215/2015, he has arrested the accused and recorded their
voluntary statements, he has recorded the statements of CW.2
to 10 and thereafter he has filed the charge-sheet against the
accused.
20. It is the specific case of the accused during the
course of cross-examination that they have not committed any
offences as alleged against them, they have been brought from
their respective houses for enquiry in other cases, when they
told that they are not knowing anything they have been fixed
17 S.C.1052/2016 &
S.C.1379/2016
in the present case. In the present case, PW.2 in his cross-
examination stated that when the CW.1 called him, he was on
patrolling duty on 6th block which is contrary to the evidence of
CW.1 and the said contradiction is material one. Further PW.2
in his cross-examination stated that he cannot say the colour
of the dresses worn by the said persons. PW.4 in his cross-
examination has stated that when he has received the
information, CW.4 to 10 were in the Police Station which is
contrary to the evidence of PW.2. Further PW.4 has also
stated that he cannot say what colour dresses were worn by
the said persons on that day. PW.3 is the Pancha who alleged
to have accompanied the complainant to the spot and he has
stated that he cannot identify whether the accused persons
before the court were the persons catch-hold by the Police on
the spot. Further PW.3 in his evidence stated that, he has
seen the MO.1 to 4 when the same were with the Police. PW.2
has stated that Police have not enquired the said persons
before him and Police have not seized the MO.1 to 4 in his
presence. PW.3 has admitted that he is not knowing what is
written in Ex.P1. He cannot give the boundaries of the spot
18 S.C.1052/2016 &
S.C.1379/2016
and he is seeing the accused persons first time before the
court, so the evidence of PW.-3 will no way help the
prosecution to prove the guilt of the accused persons. The
learned counsel for the accused has relied upon the citation
reported in AIR 1979 Supreme Court 1412 in Chaturi Yadav
and others Vs. State of Bihar, wherein it has been held as
follows;
"Penal Code (45 of 1860), Ss.399
and 402 - Conviction under - legality.
Decision of Patna High Court, Reversed.
Prosecution evidence merely
showing that eight persons including the
appellant were found in the school
premises which was quite close to the
market at 1 a.m. and that some of them
were armed with guns, some had
cartridges and others ran away - Held
that the conviction under Ss.399 and
402, was not sustainable - The mere fact
that these persons were found at 1 a.m.
did not by itself prove that they had
assembled for the purpose of committing
dacoity or for making preparations to
accomplish that object - The possibility
that the appellants might have collected
for the purpose of murdering somebody
or committing some other offence could
not be safely eliminated. Decision of
Patna High Court, Reversed."
19 S.C.1052/2016 &
S.C.1379/2016
21. From the principles laid down in the aforesaid
rulings of our own Hon'ble Apex Court, it is clear that only on
assembling the persons with deadly weapons itself will not
prove that they have committed offence under Sec.399, 402 of
IPC. The evidence of PW.1 to 4, Ex.P1 to 4, MO.1 to 4 will not
prove the guilt of the accused beyond reasonable doubt.
Looking from any angle, prosecution has utterly failed to prove
the guilt of the accused beyond reasonable doubt. So, looking
from any angle prosecution has utterly failed to prove the guilt
of the accused beyond reasonable doubt. As per the well
settled principle of Criminal Law, benefit of doubt goes to the
accused and in the present case giving benefit of doubt to the
accused, I hold that prosecution has utterly failed to prove the
guilt of the accused beyond reasonable doubt. Hence, for the
above discussion, I answer point No.1 and 2 in the
NEGATIVE.
22. POINT No.3: In view of my findings point No.1,
2 and reasons stated therein, I proceed to pass the following:
ORDER
20 S.C.1052/2016 &
S.C.1379/2016
Acting under Sec.235(1) Cr.P.C. accused No.1- Mohammed Tanveer, accused No.2-Deepak, accused No.3-Shiva, accused No.4-Muttabbeer Ali @ Ali and are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bonds of the accused stands cancelled forthwith.
As the case against accused No.5 is splitted, no order as to disposal of properties.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 1st day of February 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Rudrappa Gurikar CW.11 30-12-2016 PW.2 Rachaiah CW.5 06-01-2017 PW.3 Biju John CW.2 06-01-2017 PW.4 Nataraja CW.1 13-01-2017 Documents marked for the prosecution:
21 S.C.1052/2016 & S.C.1379/2016 Ex.P1 Mahazar PW.1 30-12-2016 Ex.P2 Complaint PW.1 30-12-2016 Ex.P2(a) Signature of PW.1 PW.1 30-12-2016 Ex.P3 FIR PW.1 30-12-2016 Ex.P3(a) Signature of PW.1 PW.1 30-12-2016 Ex.P4 P.F.205/2015 PW.1 30-12-2016 Ex.P4(a) Signature of PW.1 PW.1 30-12-2016 Material objects marked for the prosecution:
MO.1 Iron Rod MO.2 Wooden club MO.3 Chilly powder pocket MO.4 Knife
Witness examined, documents marked and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City. 22 S.C.1052/2016 & S.C.1379/2016 JUDGEMENT PRONOUNCED IN THE OPEN COURT VIDE SEPARATE JUDGEMENT ORDER Acting under Sec.235(1) Cr.P.C.
accused No.1-Mohammed Tanveer, accused No.2-Deepak, accused No.3- Shiva, accused No.4-Muttabbeer Ali @ Ali and are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bonds of the accused stands cancelled forthwith.
As the case against accused No.5 is splitted, no order as to disposal of properties.
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
23 S.C.1052/2016 & S.C.1379/2016