Bangalore District Court
State Of Karnataka By; vs Syed Tabrej on 4 January, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 4th day of January 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1228/2016
COMPLAINANT : State of Karnataka by;
Basavanagudi Police Station, Bangalore.
(By Learned Public Prosecutor)
- Vs -
ACCUSED Syed Tabrej,
S/o Syed Vasim,
23 years,
R/at No.18/59, 6th A Main Road,
R.P.C Layout, Vijayangara,
Bengaluru.
(By Sri. P.Shivakumar, Advocate)
1. Date of commission of offence 07-08-2014
2. Date of report of occurrence 07-08-2014
3. Date of commencement of evidence 21-12-2016
4. Date of closing of evidence 30-12-2016
5. Name of the complainant Kiran V., PSI
6. Offences complained of Sec.399, 402 I.P.C.
2 S.C.1228/2016
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
JUDGMENT
This case is committed by the II Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offences punishable under Sec.399, 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Basavanagudi Police Station has filed charge-sheet against accused for the offences under Sec.399, 402 I.P.C. arising out of Police Station in Crime No.161/2016.
3. The brief facts of the prosecution case is as under:
(a) It is the case of the Prosecution that, CW.1 who is the Police Sub-Inspector of Basavanagudi Police on 07-08-
2016 at about 10.00 p.m. in the Police Station , he received credible information stating that on Govindappa road, in front of house No.63, below almond tree, 4-5 persons assembled armed with deadly weapons and making preparation to commit dacoity of commuters. CW.1 called his officials and 3 S.C.1228/2016 CW.2 and CW.3 pancahs and informed the information received by him to them. Thereafter, CW.1 and his officials along with panchas came near the spot, watched spot by standing some distance away from the spot and on the spot, 5 persons assembled armed with deadly weapons by parking two two-wheelers and talking among themselves. CW.1 has confirmed the information received as correct. Thereafter, CW.1 and his officials conducted raid in presence of pacnhas and catch hold 3 persons, two persons ran away thereafter, CW.1 has inquired the said persons, said persons told their names and addresses and they told name of the persons ran away as Javeed and Bharath. Thereafter, CW.1 has drawn Mahazar and seized the deadly weapons and two two- wheelers, which were parked on the spot in presence of Panchas. Thereafter, CW.1 has brought the said persons along with the properties seized from them to Police Station, prepared Report and submitted the Report before CW.12 and produced the said persons and properties before CW.12.
(b) CW.12 who is the Police Sub-Inspector of Basavanagudi Police Station, when in the Police Station on 4 S.C.1228/2016 07-08-2016 at 11.50 p.m. CW.1 and his officials came to Police Station along with 3 persons and properties seized from them and submitted Report. CW.12, on the basis of report, has registered case in Crime No.161/2016, submitted FIR to the court. CW.12 has subjected the properties under P.F.87/2016 and kept them in the Police Station. Thereafter,CW.12 has handed over further investigation of this case to CW.1. CW.1 has taken further investigation from CW.12 and recorded voluntary statement of accused No.1 to
3. CW.1 has recorded the statements of CW.2 to CW.8 and thereafter, CW.1 has filed charge sheet against the accused.
4. After filing the charge-sheet by the Investigating Officer, II Addl. City Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered the case in C.C.26405/2014. Thereafter, II Addl. City Metropolitan Magistrate Court, Bengaluru has secured the presence of accused No.3. Even though NBW came to be issued against Accused No.1,2,4 and 5 on several occasions. Same returned un-executed. Therefore, II Addl. City Metropolitan Magistrate Court, Bengaluru has splitted the case against A1,2,4 and 5 5 S.C.1228/2016 and directed the Investigating Officer to file separate charge sheet against them. Thereafter, II Addl. City Metropolitan Magistrate Court, Bengaluru has furnished charge-sheet copies to accused as contemplated under Sec.207 of Cr.P.C. and committed the case against accused No.3 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1228/2016 and made over to this court for disposal according to law 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.3 and enlarged him on bail. Thereafter, heard the counsel for accused and learned Public Prosecutor for state on charge to be framed. Charge under section under Sec.228 of Cr.P.C. framed against the accused No.3 for the offences under Sec.399, 402 of I.P.C. and read- over to the accused in the open court, 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.
6 S.C.1228/2016
6. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 5 witnesses as PW.1 to 5 and got marked 8 documents as per Ex.P1 to 8 and marked the 5 material objects as MO.1 to 5 and closed its side. Accused is examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement in toto and further stated that accused has no defence evidence, he has nothing to say, thereafter the case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
8. The points that arise for my determination are:
1) Whether the prosecution proves beyond reasonable doubt that accused No.3 along with other accused on 7/8/2014 on Govindappa road, in front of house No.63, below almond tree 5 persons assembled armed with armed with deadly weapons and making preparation to commit dacoity and thereby 7 S.C.1228/2016 accused have committed the offence under Sec.399 of IPC?
2) Whether the prosecution proves beyond reasonable doubt that accused No.3 along with other accused persons on the above said date, time and place, assembled armed with deadly weapons in order to commit dacoity, and thereby committed the offence punishable under Sec.402 of IPC?
3) What order?
9. 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
10. POINT No.1 AND 2: The above points are
connected, hence they are taken up together for discussion together.
11. It is the case of the prosecution that the accused has committed the offences punishable under Sec.399, 402 of 8 S.C.1228/2016 I.P.C. and in order to prove the guilt of the accused the prosecution in all examined 3 witnesses and they are;
PW.1 Muddaraju-A.S.I, PW.2-P.S.I is the complainant, PW.3 Smt. Fasina Banu is the owner of two-wheeler bearing No.KA-02-H-3513, PW.4 Juniaida Ahamed is the owner of two- wheeler bearing No. KA-02-HJZ-4529, PW.5 is the Investigating Officer.
12. The prosecution in order to prove guilt of the accused in all got marked 8 documents and they are;
Ex.P1-spot cum seizure Mahazar, Ex.P2-Complaint, Ex.P3-photo, Ex.P4 is the statement of PW.3, Ex.P5 is the photo, Ex.P6- statement of PW.4, Ex.P7-FIR and Ex.P8 is the P.F.No.87/2014.
13. The prosecution in order to prove guilt of the accused in all got marked 5 Material Objects and they are;
MO.1-one iron chopper, MO.2-one iron chopper, MO.3- knife MO.4 and MO.5-Chilly powder pockets.
14. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined PW.1 and PW.1 in his evidence stated that during 2014, he was working as A.S.I 9 S.C.1228/2016 at Basavanagudi Police Station and on 7/8/2014 at 10-00pm, CW.1 called him and CW.5 to 8 to the Police Station and told that he has received credible information stating that on Govindappa road, in front of house No.63, below almond tree, 5 persons assembled armed with deadly weapons and making preparation to commit dacoity of commuters. Thereafter, CW.1 has also called CWs2 and 3 Panchas and informed about the information received to them. Thereafter, they and officials and Panchas came near the spot. On the spot, 5 persons assembled by parking two two-wheelers by holding deadly weapons and taking among themselves. They confirmed the information as correct, thereafter they have conducted raid, two persons ran away. He and Dayananda catch hold one person. He told his name as Tanveer. Kiran and Shivappa catch hold one person, he told his name as Syed and he has possessed one chopper and another person told his name as Syed. The persons catch hold told the names of persons ran-away as Javed and Bharath. CW.1 drawn mahazar and seized deadly weapons and two-wheelers from the said persons. Thereafter, they brought the said persons 10 S.C.1228/2016 and properties seized to the Police Station,CW.1 prepared report and submitted before CW.4 and identified the properties seized as M.O.1 to 5.
15. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has stated that he cannot say what type of dress was worn by the said persons, he cannot say which weapon was in whose hand on that day. He cannot say who has written the mahazar.
15. Prosecution has examined PW.2. PW.2 in his evidence stated that, in the year 2014 he was working as Police Sub-Inspector at Basavanagudi Police Station. On 7-08- 2014 at 10-00pm, he was in the Police Station, he received credible information stating that, at Govindappa road, in front of house No.63, under Almond tree, 4-5 persons assembled armed with deadly weapons and making preparation to commit dacoity of commuters. Thereafter, he called CW.4 to 8 officials and informed about the information received by him to them. He also called panchas and informed the information received to them. Thereafter, he, his officials and panchas came near 11 S.C.1228/2016 the spot and observed the spot by standing some distance away from the spot and on the spot, two two-wheelers were parked and five persons assembled armed with deadly weapons, so they confirmed the information as correct. Thereafter, they conducted raid and two persons ran away. He and his officials Shivappa, Dayananda catch hold one person and he told his name as Syed Rahil and he was possessing one chopper. His official Dayananda catch hold one person and he told his name as Tanveer and he was possessing one knife. Another person told his name as Tabrej and he was possessing one chopper. Thereafter, he has searched two two-wheelers and they are in black colours and in the two-wheeler vehicles, chilly powder pockets were there. He enquired some persons, they told that they assembled there for committing dacoity of commuters. Thereafter, he has drawn mahazar and seized dadly weapons and he brought the said persons along with properties seized to the Police Station and prepared the report and produced before CW.12 and identified the properties seized as M.O.1 to 5. PW.1 has been cross-examined by the counsel for the accused and in the cross-examination this 12 S.C.1228/2016 witness has admitted that abutting to the spot, residential houses are there and he has not called the person s who are residing abutting to the spot at the time of drawing mahazar.
16. Prosecution has examined PW.3 and 4 and they are the owners of motor cycles bearing Regn. No.KA-02-H- 3513 and KA-02-HJZ-4529 respectively and they in their evidence stated that two years earlier to their evidence, they have got released their motor cycles from the police as per the order of the court. They are not knowing the accused persons, they are not knowing how their vehicles came in possession of police. The evidence of these witnesses no-way helped the prosecution to prove the guilt of the accused.
17. Prosecution examined PW.5. PW.5 in his evidence has stated that in the year 2014, he was working as Police Inspector at Basavanagudi Police Station and on 7/8/2014 at 11-50pm, when he was in the Police Station, CW.1 came to the Police Station along with three persons and properties seized from them and produced them before him and submitted the report. On the basis of the report, he registered the case in Crime No.161/2014 he submitted the F.I.R to the court. He 13 S.C.1228/2016 has subjected the properties under P.F.No.87/2014, thereafter he arrested the accused and handed over further investigation to CW.1.
18. It is the specific case of accused during the cross- examination of prosecution witnesses that, he has not committed any offences as alleged against him. He has been brought from his house for inquiry in other cases and when he has stated that he is not knowing anything, he has been falsely implicated in this case. PW.1 who is the A.S.I of Basavanagudi Police Station in his cross-examination admitted that he cannot say what type of dress the said prsons worn on that day, he cannot say which weapon was in whose hand. He is not knowing who has written mahzar. CW.1 in his cross- examination admitted that abutting to the spot, residential houses are there and he has not called the persons, who are residing abutting to the spot at the time of mahazar and conducting mahazar. In the present case, prosecution has not examined the panchas who alleged to have been accompanied the complainant for raid. Only evidence of PW.1 and 2 will not prove the guilt of the accused beyond reasonable doubt. 14 S.C.1228/2016
19. 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."
20. 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 15 S.C.1228/2016 IPC. The evidence of PW.1 to 5, Ex.P1 to 8 and MO.1 to 5 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. 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.
21. POINT No.3: In view of my findings point No.1, 2 and reasons stated therein, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.3-Syed Tabrej is acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith.
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Case against Accused No.1,2,4 and 5 is splitted, hence, 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 4th day of January 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Muddaraju CW.4 21-12-2016 PW.2 V.Kiran CW.1 21-12-2016 PW.3 Fasina Banu CW.9 30-12-2016 PW.4 Junaida Ahamed CW.10 30-12-2016 PW.5 M.Papanna CW.12 30-12-2016
Documents marked for the prosecution:
Ex.P1 Mahazar PW.1 21-12-2016
Ex.P1(a) Signature of PW.1 PW.1 21-12-2016
Ex.P2 Complaint PW.1 21-12-2016
Ex.P2(a) Signature of PW.1 PW.1 21-12-2016
Ex.P3 Photo PW.3 30-12-2016
Ex.P4 Statement of PW.3 CW.9 30-12-2016
Exp.5 Photo CW.10 30-12-2016
17 S.C.1228/2016
Ex.P6 Statement of PW.4 CW.10 30-12-2016
Ex.P7 F.I.R 30-12-2016
Ex.P8 P.F.No.87/2014 PW.5 30-12-2016
Material objects marked for the prosecution:
MO.1 One Iron chopper MO.2 One Iron chopper MO.3 knife MO.4 Chilly powder pocket MO.5 Chilly powder pocket
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.18 S.C.1228/2016
Judgment pronounced in the open court (vide separate judgment) ORDER Acting under Sec.235(1) Cr.P.C. accused No.3-Syed Tabrej is acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith.
Case against Accused No.1,2,4 and 5 is splitted, hence, no order as to disposal of properties.
LXVIII Addl. City Civil and Sessions Judge, 19 S.C.1228/2016 Bengaluru City.