Bangalore District Court
The State Of Karnataka vs Shahid Pasha @ Miltry S/O Abdul Azeez on 15 September, 2016
IN THE COURT OF THE LX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.61)
Dated this the 15th day of September, 2016
:PRESENT :
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No. 364 / 2012
COMPLAINANT :- The State of Karnataka,
By Adugodi Police Station,
Bengaluru.
(By Public Prosecutor)
Vs
ACCUSED:- 1. Shahid Pasha @ Miltry S/o abdul Azeez
24 years, R/at: No.2, 7th Block
EWS Quarters, Koramangala
Bengaluru.
2. Edwin @ Heddu S/o Ashirwadam
(Split up)
3. Velu S/o Late Mayavan,
(A3 is reported dead and hence
case against him is abated)
4. Ashraf.K. S/o F.K.Khan,
Aged about 24 years
R/o No.22, 12th Block,
EWS Quarters, Koramangala
Bengaluru
(Sri B.Ramachandra Rao, Advocate for accused No.1 and 4)
2 SC 364/2012
Date of offence 11.10.2011 at 23.15 hours
Date of report of offence 12.10.2011 at 00.15 hours
Name of the complainant Vijay
Date of commencement of 11.12.2015
recording of evidence
Date of closing of evidence 10.06.2016
Offences complained of Sec. 397 of IPC
Opinion of the Judge Accused found guilty
State represented by Learned Public Prosecutor
Accused defended by Sri B.Ramachandra Rao,
Advocate for A1 & A4
JUDGMENT
This is a charge sheet filed by Adugodi Police against accused No.1 to 4 alleging that on 11.10.2011 at about 11.15 p.m. while CW1 was proceeding at Koramangala 80 ft., road after viewing a film at Balaji Theater, situated within the jurisdiction of Adugodi Police Station, accused No.1 to 4 having common object, prevented CW1 and dragged him to the interior road and threatened him by showing a knife and put him under fear of death and snatched his Nokia mobile phone, head phone and purse and thereby robed him and thus committed the offence punishable U/s. 397 of IPC.
2. After filing of charge sheet, accused No.1 and 4 made appearance before this Court through their counsel and copy of charge sheet was furnished to them. Accused No.3 is reported to be 3 SC 364/2012 dead. Accordingly, case against accused No.3 stands abated. Accused No.2 remained absent continuously and it is reported that he is absconding and as such, case against accused No.2 is ordered to be split up directing the police to submit split up charge sheet against accused No.2 and the present case is proceeded with only against accused No.1 and 4.
3. The charge against accused No.1 and 4 for the offence punishable U/Sec. 397 of IPC has been framed, the contents of the charge for the above said offence, read over to accused No.1 and 4 and they denied the same and claimed to be tried.
4. In support of its case, prosecution examined in all six witnesses as PW1 to PW6 and got marked documents as per Ex.P.1 to 9 and M.O.1. The statement of accused No.1 and 4 under Sec.313 of Cr.P.C., is recorded and accused No.1 and 4 denied the prosecution case. The defence examined none and no documents are marked.
5. Heard the arguments of learned Public Prosecutor and learned counsel for accused No.1 and 4. Perused the records. 4 SC 364/2012
6. The only point that arises for my consideration is as under:-
1) Whether the prosecution proves beyond all reasonable doubts that on 11.10.2011 at about 11.15 p.m. at Koramangala 80 ft., road, within the jurisdiction of Agudodi Police Station while CW1 was returning home after viewing a film at Balaji Theater, accused No.1 and 4 along with absconding accused No.2 and deceased accused No.3, prevented him and dragged him to the interior road and put him under threat of life by showing deadly weapon such as knife and snatched his mobile phone, head phone and purse from him and robbed him by using deadly weapon i.e., knife and attempted to cause death or grievous injury and thus committed an offence punishable U/Sec.397 of IPC?
2) What order?
7. My answer to the above points are as under:-
Point No.1:- In the affirmative Point No.2:- As per final order for the following:-5 SC 364/2012
REASONS
8. Point No.1:- The prosecution in support of its case, examined in all six witnesses as PW1 to 6 and relied upon the documents as per Ex.P.1 to 9 and got marked M.O.1. PW1, 3, and 4 to 6 are the police officials. PW2 is the complainant. Ex.P.1 is the report submitted by PW1, Ex.P.2 is the complaint, Ex.P.3 is the spot mahazar, Ex.P.4 is the photograph of seized mobile phone, Ex.P.5 and 6 are the reports submitted by police officials for having apprehended the accused. Ex.P.7 is the FIR, Ex.P.8 is the relevant portion of the voluntary statement of accused No.1, Ex.P.9 is the seizure mahazar.
9. PW2 being the complainant has spoken to the fact that on 11.10.2011 while he was returning home at night about 11.15 p.m. after viewing a film at Balaji Theater, four persons suddenly came at 80 ft., road at Koramangala, near the church and held him and snatched his mobile phone, head phone and purse by putting him under fear of death by showing a knife and ran away. Since he possessed another mobile phone which was not noticed by those persons, he rang up to police for help by calling 100. Within 2-3 6 SC 364/2012 minutes, police came to the spot and he informed about the robbery and shown the police the direction where the accused ran away. Immediately the police went towards the said direction and apprehended one of the persons by name Velu who is accused No.3, who revealed the names of the other three persons. Then he went to the Police Station and filed his complaint against four persons as per Ex.P.2. He gave oral complaint, which was typed by lady police constable and he signed it. He identified accused No.1 and 4 who are present before the Court as the persons who robbed him on that day along with other two persons. On the next day morning, he was taken to the place of incident where the police drew mahazar at about 10.30 a.m. On the next day the police called him to the Police Station and asked him to identify the persons who robbed him. He identified the person in the custody as the person who robbed him. Thereafter, in the Police Station on December 31st he also identified the seized mobile phone and he got released the same. He identified the photograph of the mobile phone as Ex.P.4. On the very day, he identified the knife which was used by the accused to threaten him on the date of robbery as per M.O.1. 7 SC 364/2012
10. In the cross-examination on behalf of accused No.1 and 4, PW2 denied the suggestion that there were no street lights at 80 ft., road at that time i.e., 11.15 p.m. He did not see those persons when he was caught hold by them at the time of incident. One of them was wearing jeans pant and the others were wearing pant and shirt. The police came to the scene of offence in Hoysala vehicle and two wheelers. At the time of incident, he had seen the face of three accused persons while they were running away. Thereafter, he identified the accused on 6.11.2011 in the police station. He had not informed the police about the name of the shop from which he had purchased the mobile phone. He denied the suggestion that accused never held him, nor committed any offences, he denied other suggestions of defence.
11. A careful appreciation and evaluation of the evidence of PW2 coupled with contents of Ex.P.2 makes it amply clear that while PW1 was proceeding at 80 ft., road at Koramangala on 11.10.2011 at about 11.15 p.m., accused No.1 and 4 along with two others threatened him by showing knife and put him under fear of death and snatched his mobile phone, head phone and purse and thereby robbed him. His evidence clearly attracts the essential 8 SC 364/2012 ingredients of offence under Sec.397 of I.P.C. The facts narrated by PW2 with regard to the said incident are sufficient to believe that the accused No.1 and 4 along with two others robbed PW2 by using deadly weapon i.e., knife and attempted to cause death or grievous injury while committing robbery and thereby committed the offence punishable U/Sec. 397 of IPC. This witness identified the accused No.1 and 4 who are before the Court as the persons who robbed him along with two others by threatening to take his life with the help of knife i.e., M.O.1. Further, this witness specifically identified the use of M.O.1 by the accused for committing the offence of robbery. Further, his evidence establishes the fact that the police on the next day morning, drew spot mahazar as per Ex.P.3 over the place pointed by this witness in the presence of pancha witnesses. Further, this witness identified the photograph of the seized mobile phone as per Ex.P.4. Further after the arrest of accused, this witness identified accused No.1 and 4 in the police station and gave supplementary statement before the I.O. He has also identified the seized mobile phone soon after it was seized by the police in the police station on 31.12.2011.
9 SC 364/2012
12. Therefore, his evidence itself is sufficient to believe that accused No.1 and 4 along with two others robbed him by attempting to cause grievous hurt or death, showing M.O.1 i.e., knife. Though this witness is cross-examined at length by the defense counsel, no worth material is elicited from his mouth so as to disbelieve and discard his evidence. Even there is no suggestion to the effect that the accused have not committed any such offence as alleged. It is simply suggested to PW 2 that he is deposing falsely on the say of the police. So, his evidence is not shaken in any way in the cross- examination.
13. Moreover, one of the accused had been apprehended by the police soon after the incident i.e., accused No.3, against whom the charge sheet came to be abated in view of his death. So the apprehension of one of the accused i.e., deceased accused No.3 within few minutes after the incident, supports the case of prosecution to prove that accused No.1 and 4 along with deceased accused No.3 and absconding accused No.2 robbed PW2 by putting him under the fear of death or grievous injury by showing deadly weapon i.e., M.O.1. Therefore, evidence of PW2 fully supports the case of the prosecution to prove its case against accused No.1 and 10 SC 364/2012
4. Furthermore, PW2 has no enmity or ill-will against accused No.1 and 4 to depose falsity against them. As such, evidence of PW2 is natural, believable and acceptable one and inspires the confidence of this court. Hence, prosecution is able to prove its case against accused No.1 and 4 relying on the sole evidence of PW2.
14. PW1 being the police official of Adugodi Police Station, has spoken to the effect that on 11.10.2011 at 11.25 p.m. himself along with police constable 10584 were on night duty at 6th beet. While they were so doing night patrolling duty at about 11.25 p.m. they received information from Control Room to proceed towards 80 ft., road at Koramangala and to meet one Mr.Vijay i.e., PW2. Then, immediately they rushed towards 80 ft., road near National Games Village gate and met PW2 who on enquiry revealed as to the commission of robbery by four persons in front of church gate and he had shown the direction towards which those persons ran away. Then himself and other constables rushed towards the said direction and they saw four persons proceeding ahead. They made attempts to apprehend those four persons. However, they were able to apprehend one of them and the other three persons escaped their hands. On enquiry, the person who was apprehended revealed his 11 SC 364/2012 name as Velu and also disclosed the names of other three persons who escaped from the hands of the police. Then they brought the apprehended accused by name Velu to the police station at about 00.15 hours at night and produced him before the PSI along with report Ex.P.1. This witness states that the said accused by name Velu is not present before this Court. He states the names of the accused No.1 and 4 who are present before the Court. He also states that he can identify the accused by name Edwin if he is shown to him.
15. In the cross-examination he states that he has not noted down the names and address of the accused who ran away from the spot on that day. He cannot state the colour of the clothes worn by the accused on that day. Nothing has been seized from the possession of the accused by name Velu after his arrest. He denied other suggestions of defense.
16. On perusal of evidence of PW1 coupled with contents of Ex.P.1, it can be said that his evidence establishes the fact that soon after the incident of robbery, PW1 and other police constables met PW2 and on coming to know about the robbery, they chased 12 SC 364/2012 those accused persons who robbed PW2 and were able to apprehend deceased accused No.3 and produced him before SHO by filing report as per Ex.P.1. So, the fact that PW1 and other police constables apprehended deceased accused No.3 while he was running away along with accused No.1, 2 and 4 soon after the incident, corroborates the version of PW2 who has categorically deposed that soon after the incident he informed the Control Room and the police arrived to the spot and were able to apprehend one of the robbers on that day. Therefore, evidence of this witness i.e., PW1 fully supports the case of the prosecution to believe that accused No.1 and 4 along with two others committed the offence of robbery by snatching the mobile phone, head phone and purse from PW2.
17. PW3 being police Head Constable of Adugodi Police Station has spoken to the effect that on 14.10.2011, himself and PC 5086 were deputed in search of absconding accused. While they were so doing patrolling duty at 80 ft., road, Koramangala, they received information from the informants that one of the accused by name accused No.4 Ashraf was present near water tank of EWS Quarters. On receiving said information, they went to the said place 13 SC 364/2012 and surrounded accused No.4 and apprehended and brought him to the Police Station and produced him before PSI along with his report Ex.P.5. This witness identified the accused by name Ashraf before the Court. In the cross-examination he states that he was orally instructed by SHO to trace out the accused persons. He has not seized any article from the possession of the accused. On perusal of his evidence, it goes to show that accused No.4 has been apprehended by PW3 and another constable on 14.10.2011. So, his evidence corroborates the prosecution papers and supports the case of prosecution to prove its case against the accused.
18. PW4 being another Head Constable of Adugodi Police Station spoken to the fact that on 6.11.2011, himself and PC 10024 were deputed in search of absconding accused No.1 and 2. On receiving information from the informants about the presence of accused No.2 near water tank of EWS Quarters at Koramangala, they went to the said place and surrounded accused No.2 and apprehended and brought him to the Police Station and produced him before PSI along with report Ex.P.6. His evidence simply goes to show that accused No.2 was apprehended on 6.11.2011 and his evidence corroborates the prosecution papers. 14 SC 364/2012
19. PW5 being the I.O. has spoken to the fact that while he was on SHO duty at about 00.15 hours on 11.10.2011, the complainant as well as CW6 and 9 along with one accused came to the Police Station. He received complaint from PW2 as per Ex.P.2 and registered the same and submitted FIR to the Court as per Ex.P.7. CW6 and 9 produced accused No.3 by filing their report Ex.P.1. He apprehended deceased accused No.3 and on enquiry, recorded his voluntary statement and kept him in custody. On the next day morning he paid visit to scene of offence along with pancha witnesses and conducted spot mahazar as per Ex.P.3 over the place which was pointed out by PW2. Thereafter he recorded statements of PW2,3, 6 and 9 and returned to Police Station and produced accused No.3 before the Court and deputed his staff to trace out the other absconding accused. It is his further evidence that on 6.11.2011 at 9.00 a.m. two police constables produced accused No.2 by filing report as per Ex.P.6. He apprehended accused No.2 and on enquiry recorded his voluntary statement. He secured the presence of complainant to the Police Station, who identified accused No.2 and thereafter he recorded further statement of complainant and thereafter handed over the further investigation to 15 SC 364/2012 CPI. In his cross-examination he denied suggestions of learned counsel for accused No.1 and 4.
20. On perusal of evidence of PW5 it can be said that his evidence corroborates with the evidence of PW1 to 4 and the prosecution papers. His evidence establishes arrest of accused No.02 and 3, drawing of spot mahazar as per Ex.P.3 and recording statement of witnesses. So, his evidence fully supports the case of prosecution to prove its case against accused persons.
21. PW6 being another Investigating Officer has spoken to the effect that he took up further investigation of the case on 13.10.2011 and verified the investigation papers and deputed his staff to trace out the absconding accused. On 14.10.2011, CW7 and CW10 produced accused No.4 before him. He apprehended accused No.4 and on enquiry, recorded his voluntary statement. He secured the presence of complainant to the Police Station where the complainant identified accused No.4 and to that effect, he recorded his supplementary statement and then, produced accused No.4 before the Court. On 6.11.2011, CW12 produced accused No.2 before him and he apprehended accused No.2. On 3.12.2011 16 SC 364/2012 accused No.1 appeared before him by obtaining anticipatory bail order and then, he enquired accused No.1 and recorded his voluntary statement wherein, accused No.1 revealed that he kept the mobile phone and knife in the house of his mother-in-law and he is ready to produce the same if he is taken to said place. On the basis of his voluntary statement as per Ex.P.8, accused No.1 lead the police and pancha witnesses to the house of his mother-in-law at EWS Quarters and went inside the house and produced the mobile phone and knife before him. He recovered the mobile phone and knife by drawing mahazar as per Ex.P.9. He identified the knife as M.O.1 and identified the photograph of mobile as per Ex.P.4 and then returned to the Police Station along with accused No.1 and seized articles and filed PF before the Court. He secured presence of complainant who identified accused No.1 and to that effect, he recorded his supplementary statement. He then recorded statements of CW4 and 5 and after completing investigation, filed charge sheet against accused persons. In the cross-examination he states that he orally instructed police staff to trace out the accused persons. He had not issued written notice to pancha witnesses. He denied other suggestions of learned counsel for accused. 17 SC 364/2012
22. On perusal of evidence of PW6 coupled with the contents of Ex.P.8 and 9, it can be sad that his evidence establishes the fact that on the basis of voluntary statement given by accused No.1, he seized the stolen mobile phone and the weapon which was used for commission of the offence i.e., M.O.1 by drawing mahazar as per Ex.P.9. His evidence corroborates the evidence of PW1 to PW5 to believe the case of prosecution. His evidence needs no corroboration and same itself is sufficient to believe seizure of mobile phone and knife at the instance of accused No.1. So evidence of I.O. corroborates prosecution papers and fully supports the case of the prosecution to prove its case against the accused. Though the pancha witnesses in whose presence seizure mahazar Ex.P.9 was conducted, are not examined, the same is not fatal to the case of the prosecution. The sole evidence of I.O., i.e., PW6 itself is sufficient to believe the seizure of mobile phone under Ex.P.9. Such being the fact, non-examination of both the pancha witnesses in whose presence Ex.P.9 was drawn, does not create any doubt as to the seizure conducted by this witness. Thus the evidence of I.O. is believable and acceptable one and same inspires confidence to this Court to believe the case of prosecution. Further, 18 SC 364/2012 the law is well settled that the sole evidence of I.O. itself can be relied upon to believe the seizure of articles irrespective of non examination of pancha witnesses.
23. In this regard, the Hon'ble Apex Court in the case of Rameshbhai Mohanbhai Koli & Ors vs State Of Gujarat reported in (2011)11 SCC 111, observed as under:-
"Courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.
24. Hon'ble Apex Court further in the case of Modan Singh vs. State of Rajasthan reported in (1978) 4 SCC 435, observed that:-
"Where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did 19 SC 364/2012 not support the prosecution version. Similar view was expressed in Mohd. Aslam vs. State of Maharashtra, (2001) 9 SCC 362. In Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657, it was further held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
On going through the above said authorities, it can be said that the ratio observed by the Hon'ble Apex Court is aptly applicable to the case on hand. Herein this case also, though the prosecution is not able to examine the panch witnesses in whose presence the recovery mahazars were drawn, still the evidence of Investigating Officer, can be relied be relied upon to believe the seizure of articles at the instance of accused No.1. Therefore, the evidence of PW6 inspires the confidence of this Court to believe the case of prosecution.
25. On careful appreciation of entire evidence of PW1 to PW6 coupled with the contents of Ex.P.9, I am satisfied that the prosecution is able to establish its case against the accused No.1 and 4 beyond all reasonable doubts. The sole evidence of PW2 who 20 SC 364/2012 deposed that accused No.1 and 4 robbed him along with two others, inspires the confidence to this Court to believe the case of the prosecution. Absolutely, there is nothing on record to disbelieve and discard the evidence of PW2 who has no ill will or enmity against these accused to depose falsity. The evidence of PW1, 3 to 6 being the police officials corroborates with the consistent evidence of PW2. As such, the prosecution has proved its case against the accused No.1 and 4 beyond all reasonable doubts for the offence punishable U/Sec.397 of IPC. The arguments advanced by the learned counsel for accused No.1 and 4 that in the absence of evidence of pancha witnesses, the seizure of M.O.1 and mobile phone cannot be considered, holds no water. Hence, I do not find any infirmity or lacuna in the case of prosecution to disbelieve its case. Having regard to all these facts and circumstances of the case, I am of the considered view that the prosecution has successfully proved its case against accused No.1 and 4 beyond all reasonable doubts and hence, accused No.1 and 4 are found guilty for the offence punishable U/s.397 of IPC and are liable to be convicted and accordingly, I answer point No.1 in Affirmative. 21 SC 364/2012
26. Point No.2:- In view of my findings on point No.1, I proceed to pass the following;
ORDER Accused No.1 and 4 are found guilty and acting U/s.235(2) of Cr.P.C., they are convicted for the offences punishable U/Sec. 397 of IPC.
The judgment is deferred for hearing on sentence.
(Dictated to Judgment writer, transcribed by him, revised and corrected by me and then pronounced in open court on this the 15th day of September, 2016) (S.K.VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.
ORDER ON SENTENCE I have heard the learned Public Prosecutor as well as accused No.1 and 4 on sentence. Accused No.1 and 4 submit that they are young and they are the only earning members and they are first offenders and hence leniency may be shown in imposing punishment on them. On the other hand, the learned Public 22 SC 364/2012 Prosecutor submits that the offence committed by accused No.1 and 4 is heinous and anti social one and hence, prayed to impose maximum punishment on them.
On hearing both sides on the point of sentence, I have gone through the entire materials placed on record. It is noticed that accused No.1 and 4 are young and they are the first offenders. There are no bad antecedents against them. Therefore, considering all these facts, nature of offence committed by the accused, age and back ground of accused and other mitigating circumstances, I proceed to pass the following:-
ORDER Accused No.1 and 4 are hereby convicted and sentenced to undergo rigorous imprisonment for a period of seven years for offence under Sec.397 of Indian Penal Code.The period in which the accused No.1 and 4
were in judicial custody, if any, shall be given set off.
Seized M.O.1 i.e., knife being worthless is ordered to be destroyed after expiry of appeal period.23 SC 364/2012
The release of seized mobile in favour of PW2 is made absolute.
Supply free copy of judgment to accused.
Issue conviction warrant accordingly.
(Typed to my dictation by the Judgment writer, revised and corrected by me and then pronounced in open court on this the 15th day of September, 2016) (S.K.VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Parameshwaraiah PW2 Vijay PW3 B.M.Mahadevappa PW4 V.Sampathnarayana PW5 S.N.Subhashchandra PW6 R.Manjunath
List of witnesses examined for the defence:
Nil List of documents exhibited for the prosecution:
Ex.P.1 Report of CW6
Ex.P.2 Complaint
24 SC 364/2012
Ex.P.3 Spot mahazar
Ex.P.4 Photograph of Mobile Phone
Ex.P.5 Report of CW7
Ex.P.6 Report of CW8
Ex.P.7 FIR
Ex.P.8 Voluntary statement of A1
Ex.P.9 Seizure mahazar
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution:
M.O.1 Knife
LX Addl.City Civil & Sessions Judge,
Bengaluru.
Rrt*