Bangalore District Court
State By vs Yasin Ahamed on 1 September, 2017
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 1st DAY OF September 2017
PRESENT
SRI.A.VIJAYAN, B.A.(LAW),LL.M.,
LXVI Addl.City Civil & Sessions Judge (CCH-67)
S.C.1499/2010
COMPLAINANT : State by:
K.G.Halli Police Station,
Bangalore.
(By Public Prosecutor)
/Vs/
ACCUSED: 1. Yasin Ahamed
(Split up)
2. Masood @ Masoodulla Khan,
S/o Zafrullah Khan, 19 years,
9th Cross, HKBK College Road,
Govindapura Main Road,
Bangalore City.
(Addused No.4)
3.Mohammed Shahid,
S/o Chand Pasha,
Aged 23 years,
Govindapura 1st Cross,
Near AVM Mansion,
Govindapura Main Road,
Bangalore city.
(Accused No.5)
(By A-4 and 5 by Sri.YAK, Advocate)
2 S.C.1499/2010
DATE OF:
Occurrence of offence : 25/09/2009
Commencement of trial: 14/03/2011
Closing of trial : 09/03/2016
Name of the complainant : Sri.Mustaf Ahamed
Offence alleged : U/s 143,307 r/w 149 IPC
Opinion of the judge: Charges leveled against
accused are not proved
Sentence or order : A4 & 5 Acquitted
JUDGMENT
Siddapura police filed charge sheet against the accused in Crime No.315/2009 for the offence punishable under Sec.143, 307 r/w 149 of IPC.
2. Brief facts of the prosecution case is that:-
That on 25.9.2009 at about 3 p.m. within the jurisdictions of K.G.Halli police station, accused No.1 to 6 took CW2 to a building under construction on Noor Masjid junction, Govindapura Main Road, Rashad Nagar, picked up a quarrel in respect of amount of Rs.25,000/- asked by them and saying "maro hise' and accused No.2 assaulted CW2 to the left side of the head and caused 3 S.C.1499/2010 injuries, accused No.1 stabbed left side of CW2 with knife and caused grievous injuries and accused No.3 assaulted CW2 with long on the right and left side of the stomach and accused No.4 to 6 assaulted CW2 with knife and caused deadly injuries with a common intention to murder him. Therefore complainant prayed to take action against accused.
3. Thereafter Police have filed FIR before the court and after collection of relevant documents after conducting thorough investigation filed charge sheet against the accused for the offences 143, 307 r/w 149 of IPC. Accused No.3, 4 and 5 were present. Accused No.1, 2 and 6 were not secured inspite of issuance of NBW. Mean while accused No.1 is deleted from charge sheet since it is reported that he is dead and case against accused No.2 and 6 split up and case was committed to Sessions Court. After committal of this case, again accused No.4 and 5 appeared before this court and enlarged on committal bail. Accused No.3 inspite of issuance of proclamation was not secured. Hence, case 4 S.C.1499/2010 against accused No.3 split up. Heard before charge, charge framed and plea of accused recorded. Accused pleaded not guilty, but claimed to be tried by this court. Hence, this case was posted for trial.
4. During the course of trial, the prosecution in all examined its witnesses as PW1 to PW9 and got marked documents Ex.P.1 to P.15. Accused statement under Sec. 313 of Cr.P.C. was recorded. On the other hand, the accused neither produced nor adduced any evidence on their defence.
5. Heard arguments on both the sides and case was posted for judgment. During the course of trial, the prosecution in all examined its witness PW1 to 9 and got marked documents at Ex.P.1 to P.15 and got marked MO 1 to 4.
6. Out of above said facts and circumstances of the case, and material evidence on record, points that arise for my consideration are as under for the following reasons:-
5 S.C.1499/2010
1. Whether the prosecution proves beyond all reasonable doubt that accused 4 and 5 along with other accused on 25.9.2009 at about 3 p.m. within the jurisdictions of K.G.Halli police station, accused No.1 to 6 took CW2 to a building under construction on Noor Masjid junction, Govindapura Main Road, Rashad Nagar, picked up a quarrel in respect of amount of Rs.25,000/- asked by them and saying "maro hise' and accused No.2 assaulted CW2 to the left side of the head and caused injuries, accused No.1 stabbed left side of CW2 with knife and caused grievous injuries and accused No.3 assaulted CW2 with long on the right and left side of the stomach and accused No.4 to 6 assaulted CW2 with knife and caused deadly injuries with a common intention to murder him and by that act accused would have caused the death of CW2 accused would have been guilty of murder and thus committed an offence punishable under Sec.143, 147, 148 and 307 r/w 149 of IPC?
2. What Order?
7. My findings to the above points are as under
for the following reasons:-
Point No.1 : In the Negative Point No.2 : As per final Order, 6 S.C.1499/2010 for the following stated REASONS
8. POINT No.1: In this case, police have filed charge sheet against the accused for the offence punishable under Sec.143, 147, 148 and 307 r/w 149 of IPC. It is burden on the prosecution to prove the guilt against the accused beyond all reasonable doubt with the material, supportive and corroborative evidence with cogent reasons.
9. Learned Public Prosecutor vehemently argued that in this case accused has committed offence punishable under Sec.143,147, 148 and 307 r/w 149 of IPC. During the course of trial, the prosecution examined its witnesses PW1 to 9 and got marked documents at Ex.P.1 to P.15 and got marked MO 1 to 4. All the material witnesses examined by prosecution fully supported the prosecution case further corroborated by evidence of doctor and investigation Officer. Viewing from any angle prosecution has proved guilt against the accused beyond all reasonable doubt. Hence, he prayed 7 S.C.1499/2010 to convict the accused for the alleged offences in the interest of justice and equity.
10. On the other hand learned advocate for accused No.4 and 5 vehemently argued that though prosecution examined its witnesses PW1 to PW9 and got marked documents Ex.P.1 to P.15 and MO.1 to 5 , but there is no allegation against accused No.4 and 5 i.e. Masood and Mohammed Shaheed. Complainant has alleged that only accused No.1 to 3 have assaulted him but there is no allegation against accused No.4 and 5 , but after the incident the incident these accused persons are inserted as accused in this case. Viewing from any angle there is no crystal clear evidence to prove guilt against these accused No.4 and 5 beyond all reasonable doubt. Hence, he prayed this court to acquit the accused No.4 and 5 in the interest of justice and equity.
11. P.W.1 Altaf Ahamed in his examination in chief deposed that CW2, CW6 , CW7 and CW8 are his children. He further deposed that at about 10 months back one day when he was in a hotel belonging to his son at about 8 S.C.1499/2010 3 to 4 p.m. CW8 called him through phone and informed about assault to his Akram again at 6 p.m. his wife informed him through phone about injuries sustained by Akram and taking treatment in the hospital , immediately he called his son in law and he rushed to hospital and informed him that his son was in serious condition since there was surgery to be carried out on his body, presence of PW1 is required to offer consent. Hence, he immediately rushed to Bowring hospital wherein his son informed the advocate about the incident. Advocate also came there and advised them to lodge complaint. Thereafter his advocate informed police about the incident. Police came to hospital and recorded his complaint and obtained his signature , that document is marked as Ex.P.1 land he identified his signature on Ex.P.1 as P.1(a). He clearly admitted that at the time of giving complaint to police he did not stated the name of accused. Thereafter along with his son he had been to Govindapura wherein one female informed him that some miscreants assaulted his son and he was lying on the 9 S.C.1499/2010 ground. At that incident spot there is one school, immediately he had been to police station and disclosed incident spot to police. Police after inspecting that spot drawn spot mahazar as per Ex.P.2 and identified signature at Ex.P.2(a). He identified cloths of his son in MO.1 and 2. At that stage learned prosecutor turned him partly hostile. In his cross examination he deposed that his daughter informed him that Baba Tofiq and other person assaulted his son with knife and long, same he had informed before the police. He also admitted the occurrence of incident on 25.9.2009 and on the next day he had been to incident spot. CW3 disclosed incident spot to police. He denied such other suggestions. Thre is no cross examination from defense side.
12. PW.2 deposed that on 26.2.2009 police obtained his signature at Rasheed Nagar Noor Masjid wherein police were conducting spot mahazar, but only obtained his signature to the document wherein police also seized cloths produced by Altaf , he identified those cloths in MO1 and 2. He identified is signature at 10 S.C.1499/2010 Ex.P.2(b). He was not cross examined by accused No.4 and 5.
13. PW.3 Akram Pasha the injured and material prosecution witness in this case deposed that PW1 Altaf Ahamed his father, CW6 Fayza Pasha and Amzad Pasha or his brothers and CW8 Ayusha Sultana, his sister and CW3 Mohammed Jabeer his friend and further deposed that at about 1 ½ years back he had been to Govindapura mosque to offer Namaz, by that time it was 2.30 p.m. When he returned back accused No.2 Tofiq and accused No.1 Baba took him to 5th cross to have talk with him, wherein they demanded Rs.25,000/-, when he refused the other three accused who were standing in the passage holding long, immediately accused Tofiq assaulted him, thereafter accused No.4 and 5 assaulted him. Immediately his friend CW3 took him to hospital. He is doing both driving as well as fabrication work. He is earning more money. Hence, accused demanded Rs.25,000/- as roll call with him. When he was talking with Tofiq his friend Zahir was on the spot. Accused 11 S.C.1499/2010 Tofiq assaulted him with long and knife as a result he has sustained injury on his fore head, left hand wrist, left hand thumb , left side of abdomen and stomach and left leg. One of the accused assaulted him on his left side of fore head and right side of shoulder and upper portion of forehead. He cannot exactly overt act of each accused in the incident. And another boy also assaulted him and he had taken treatment for a period of 10 days in the hospital. Doctors have also conducted surgery. At that time of incident he was wearing black shirt which is already marked as MO1. and the weapon possessed by accused No.4 marked as MO.3. Weapon possessed by Tofiq marked as MO.4 but he failed to identify the other weapon produced before the court. In his cross examination he deposed that accused is known person to him. He did not lodge any complaint before the police as accused are demanding roll call from him. On the day of incident accused also demanded roll call with him. When he refused accused assaulted him. The incident occurred between 2.30 and 3 p.m. i.e. after completion of Namaz 12 S.C.1499/2010 in the mosque. He cannot read and write Kannada, he do not know whatever written by police in his statement. Police obtained his statement after elapse of three days. He failed to recount exact time of recording of his statement, at that time his elder brother was with him. He further deposed that after the incident he also assaulted accused and police have registered a case against him for the offence punishable under Sec.307 of IPC. At that time one Mohammed Zahir was with him. When Tofiq was assaulting him, Mohammed Zahir escaped from the spot.
14. PW4 Mohammed Zahir whose name is stressed in the evidence of PW3 injured and material prosecution witness deposed that he know PW3 Akram Pasha and he do not know CW 4 Mohammed Afrose. About 2 years back one day inbetween 2 and 3 p.m. near Arabic college, Govindapura, PW3 had sustained injury and was lying on the ground and he sought his help , immediately he took him to Bowring hospital and admitted him as inpatient and he did not see accused before this court in 13 S.C.1499/2010 the spot. But PW3 sustained injuries all over his body. He was not eye witness to the incident. He also denied his statement before police. Further deposed that police accompanied Akram Pasha to the spot and conducted spot mahazar in his presence and identified his signature at Ex.P.2(c) and turned hostile. In his cross examination prosecution failed to elicit any gainful evidence in favour of prosecution.
15. PW5 Dr.Bhanumurthy deposed that on 25.9.2009 at about 3.45 p.m. when he was in ICU of Bowring Hospital he had examined Akram Pasha accompanied by his friend Fyzal Pasha on the history of assault by Tofiq and other two persons with long and knife at 3 p.m. at 5th Cross, Govindapura, when examined he had seen seven injuries on his body and through him prosecution got marked wound certificate in Ex.P.4 and he identified is signature at Ex.P.4(a). He also opined that injuries seen on injures may occur when assaulted with weapons like MO.3 and 4. The intimation given to police marked at Ex.P.5 land his signature at 14 S.C.1499/2010 Ex.P.5(a). In his cross examination he denied several suggestions put by learned defense counsel.
16. PW6 Nagaraj deposed that there is signature at Ex.P.6 and P.6(a) and he cannot recount where exactly he signed in Ex.P.6 and he did not see accused before this court. Police did not seized any weapons in his presence by drawing seizure mahazar Ex.P.6 and turned hostile. But during cross examination prosecution failed to elicit any gainful evidence in favour of prosecution.
17. PW7 admitted signature in Ex.P.6 sizure mahazar at Ex.P.6(b) same he had signed in K.G.Halli police station. Police did not seized any material objects in his presence and turned hostile.
18. PW.8 Shanthakumar head constable attached to K.G.Halli police, deposed that on 7.10.2009 his station PSI deputed him along with CW22, 23 and 20 to trace and arrest accused required in this case , accordingly, they contacted police informers and arrested Yasin and Masood and produced him before PSI along with report 15 S.C.1499/2010 as per Ex.P.7. In his cross examination he denied suggestions put by learned defense counsel.
19. PW9 Ashwath Gowda the then PSI of K.G.Halli Police Statin deposed about whatever investigation conducted by him from alfa to omega and filing of charge sheet. But he was not cross examined by learned defense counsel.
20. On analyzing entire case of prosecution it is clear that it has been alleged by prosecution that accused committed offence under Sec. Sec.143,147, 148 and 307 r/w 149. But during the course trial though prosecution examined its witnesses PW1 to 9 and got marked ExP.1 to P.15 and MO.1 to 5. PW.3 Akram Pasha the injured and material prosecution witness failed to depose anything about accused No.4 and 5 but he had deposed that the Tofiq demanded roll call of Rs.25,000/- from him and when he refused to pay the same, Tofiq and others assaulted him, at that time Mohammed Zahir was with him and he is the eye witness to the incident. PW3 also clearly admitted that after the incident he also 16 S.C.1499/2010 assaulted Tofiq for which a counter case is registered against him for the offence punishable under Sec.307 of IPC. Other material eye witness whose names stressed both in FIR, charge sheet as well as in the evidence of PW3 Mohammed Zahir examined himself as PW4 and he denied his status as eye witness to the incident, he failed to prosecution case absolutely and turned hostile. Seizure mahazar witnesses on whose presence police have alleged to have seized weapons, PW6 Nagaraj and PW7 Mohammed Shafi failed to support prosecution case and turned hostile absolutely. Viewing from any angle there is no crystal clear evidence to bring home charge against these accused for the alleged offences. Hence, prosecution failed to prove guilt against the accused beyond reasonable doubt. Hence, this court hold point No.1 in the Negative.
21. POINT No.2: In view of my finding to point No.1 and for reasons discussed above, I proceed to pass following:-
17 S.C.1499/2010
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.4 and 5 are hereby acquitted for the offence punishable U/Sec 143,147, 148 and 307 r/w 149 of IPC.
Accused No.4 and 5 are set at liberty.
Office is directed to take bail bonds from accused for a sum of Rs.50,000/- each along with a surety for the likesum.
MOs 1 to 5 shall be preserved till disposal of split up case.
(Dictated to the judgment writer on Computer, typed by her and then corrected and pronounced by me in the open court on this the 1st day of September 2017) (A.VIJAYAN), LXVI Addl., City Civil & Sessions Judge, Bangalore.
-:ANNEXURE:-
WITNESSES EXAMINED BY THE PROSECUTION:-
PW.1 Altaf Ahamed PW.2 Abdul Wazi PW.3 Akram Pasha PW.4 Mohammed Jaheer PW.5 Dr.Bhanumurthy PW.6 Nagaraj PW.7 Mohammed Shafi PW.8 Shanthakumar PW.9 Ashwath Gowda 18 S.C.1499/2010 WITNESS EXAMINED FOR DEFENCE :- Nil DOCUMENTS MARKED FOR PROSECUTION:-
Ex.P1 Complaint Ex.P1(a) Signature of PW.1 Ex.P2 Mahazar Ex.P2(a) Signature of PW.1 Ex.P2(b) Signature of PW.2 Ex.P2(c) Signature of PW.4 Ex.P3 Portion of statement of PW4 Ex.P4 wound certificate Ex.P4(a) Signature of PW.5 Ex.P5 Police information Ex.P5(a) Signature of PW.5 Ex.P6 Mahazar Ex.P6(a) Signature of PW6 Ex.P6(b) Signature of PW.7 Ex.P7 Report of PW8 Ex.P7(a) Signature of PW.8 Ex.P8 FIR Ex.P.9 PF Ex.P.10 Report Ex.P.11 Portion of statement Ex.P.12&13 Statement Ex.P.14 PF Ex.P.15 Acknowledgment DOCUMENT MARKED FOR DEFENCE:- Nil
MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO1 Shirt
MO2 Yellow colour T shirt
MO3 Long
MO4 Knife
MO5 Knife
(A. VIJAYAN)
LXVI Addl.City Civil & Sessions Judge, Bangalore.19 S.C.1499/2010
1.9.2017:
For Judgment Pronounced vide separate judgment with following operative portion:
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.4 and 5 are hereby acquitted for the offence punishable U/Sec 143,147, 148 and 307 r/w 149 of IPC.
Accused No.4 and 5 are set at liberty.
Office is directed to take bail bonds from accused for a sum of Rs.50,000/- each along with a surety for the likesum.
MOs 1 to 4 shall be preserved till disposal of split up case.
LXVI Addl.City Civil & Sessions Judge, Bangalore.