Bangalore District Court
The State Through vs No.7 Ashraf Ali Shekh on 28 June, 2022
1 C.C.6080/2018
IN THE COURT OF THE XXXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M, Bengaluru
Dated this the 28th day of June, 2022
Criminal Case No.6080/2018
(split-up from C.C. 21731/2016)
Complainant : The State through
Police Sub Inspector,
Malleswaram Police Station
( By Asst. Public Prosecutor )
--- V/s ---
Accused no.7 Ashraf Ali Shekh,
S/o.Ismail Shekh,
Aged about 50 years,
No.18, room No.214, Lalu
Bai compound, Mumbai,
Maharashtra State.
( A7- By Sri. C.Raju, Advocate,)
1.Date of commencement of 20.06.2016 offence.
2. Date of report of offence. 20.06.2016
3. Arrest of the Accused
a) Date of arrest of accused Not applicable
b) Date of release on bail
c) The period undergone in custody
4. Name of the Informant Sri.Raja.A S/o Arjunan.K
5. Date of commencement of ---
2 C.C.6080/2018recording evidence.
6. Date of closing of ---
evidence.
7. Offences complained of Secs.143, 147, 324, 323, 355 and 326 r/wSec.149 of Indian Penal Code.
8. Opinion of the Judge. Accused No.7found not guilty.
XXXII.Addl.C.M.M Bengaluru J UD GME N T This is a split up case to original C.C.No21731/2016. The Sub-Inspector of police, Malleswaram Police Station has filed the Charge Sheet against the accused No.7 and others for the offence punishable Under Secs.143, 147, 324, 323, 355 and 326 r/w Sec.149 of Indian Penal Code.
2. The case of the Prosecution in brief is as follows:
That the Air Conditioner in 3rd floor at J.M.Finance office at Yathiraj building, Malleswaram was not functioning and the accused no.7 was directed to get the A.C repaired, as such the accused no.7 got help from C.W.1-A.Raj and C.W.4-Yugendra to repair the A.C. On 20.06.2016 at about 11.30 A.M, while C.W.1 and 4 were repairing the A.C for leakage at the above said office, at 3 C.C.6080/2018 about 2.30 P.M while C.W.1 was repairing the A.C at 2 nd floor near the ladies toilet, the accused no.4 misunderstood that C.W.1 was taking photos of the accused no.4 and the accused no.4 to 6 stopped the A.C. repair work and took away the mobile phone of C.W.1-A.Raj and at 3.30 P.M when C.W.1 finished his work and asked for return of his mobile phone, the accused no.1 to 7 formed into an unlawful assembly and picked up quarrel with C.W.1-A.Raj and the accused no.1 and 2 assaulted C.W.1 with club on his legs and the accused no. 3 and 7 assaulted C.W.1 with hands and assaulted C.W.1 with slippers and dishonored him . Further the accused persons assaulted him with hands and clubs and the accused no.4 and 6 punched C.W.1 on his chest and when C.W.1 with an intent to escape from the accused jumped from the railing of the terrace to the Ashoka tree next to the building, he slipped and fell down from the tree and sustained grievous injuries to his back and head.
Thereby the accused committed offences punishable Under Secs.143, 147, 324, 323, 355 and 326 r/w Sec.149 of Indian Penal Code.
3. On the basis of the Statement of CW-1, the Malleswaram Police have registered a case under Crime 4 C.C.6080/2018 No.101/2016 for the offence punishable Sec.337 r/w Sec. 34 of Indian Penal Code against the accused person and submitted the FIR before the court. Thereafter investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses and on completion of the investigation, the Charge Sheet has been filed against the accused no.1 to 7 for the offences punishable Under Secs.143, 147, 324, 323, 355 and 326 r/w Sec.149 of Indian Penal Code. On receipt of police report this court has taken cognizance for the said offences.
4. As there are sufficient materials in the charge sheet to proceed against the accused cognizance was taken for the offence punishable under sections.143, 147, 324, 323, 355 and 326 r/w Sec.149 of Indian Penal Code. In view of continuous absence of the accused No.7 in the original C.C.No.21731/2016, case against him is split-up and the present case is registered(C.C.6080/2018). During the pendency of the present case the present accused No.7 voluntarily appeared through his Advocate and he was released on bail. Copy of Charge sheet and other materials are furnished to the accused No.7 as contemplated U/Sec.207 of Cr.P.C.
5. After hearing both the parties, the charge was framed 5 C.C.6080/2018 against the accused No.7 and read over to the accused. Accused No.7 pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
6. Records of original CC 21731/2016 are called. It is pertinent to note that, this is a split up case to original CC No.21731/2016 which has been disposed off on 17-03-2020 by acquitting the accused No.1 to 6 . Thereafter, the learned APP and also the learned advocate for the accused have adopted the evidence in C.C.No.21731/2016 in this case also. In view of the same the evidence of all the witnesses which were recorded in CC No.21731/2016 are adopted to this case.
7. In view of the above decision the evidence of all the witnesses which were recorded in CC No.21731/2016 are adopted to this case.
8. In order to bring home the guilt of the accused, the prosecution has got examined 5 witnesses as PW-1 to PW-5 in Original CC No.21731/2016, out of total charge sheet witnesses as CW.1 to 11 and got marked four document as Ex.P1 to P4, 6 C.C.6080/2018 Ex.D.1 to 4 -photos and material objects as M.O.1 to 3. After closure of the prosecution evidence the accused is examined U/s.313(1)(b) of Cr.P.C. Each and every circumstances found in the evidence of the prosecution separately read over to the accused No.7. The accused no.7 denied all such circumstances as false. The accused did not choose to adduce defense evidence. and got marked Ex.D.1 to 4 on behalf of the accused.
9. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused.
10. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 20.06.2016 at 3.30 P.M, when C.W.1 finished his work and asked for his mobile accused persons formed into an unlawful assembly and committed the offence of punishable U/s 143 of IPC r/w.149 of IPC and within my 7 C.C.6080/2018 cognizance.
2. Whether the prosecution proves beyond all reasonable doubt that on the same date, place and time, accused persons formed into unlawful assembly and committed rioting an offence punishable U/s 147 r/w/Sec.149 of IPC and within my cognizance.
3. Whether the prosecution proves beyond all reasonable doubt that on the same date, place and time, accused persons formed into unlawful assembly picked up quarrel with C.W.1-A.Raj and the accused no.1 and 2 without any provocation assaulted C.W.1 with club on his legs and thereby you have committed an offence of Voluntarily causing hurt by dangerous weapons punishable U/s 324 r/w Sec.149 of IPC and within my cognizance.
4. Whether the prosecution proves beyond all reasonable doubt that on the same date, place and time, accused persons formed into unlawful assembly and picked up quarrel with C.W.1-A.Raj and the accused no. 3 and 7 without any provocation assaulted C.W.1 with hands and thereby accused have committed an offence of voluntarily causing hurt punishable U/s 323 r/w Sec.149 of IPC and within my cognizance.
5. Whether the prosecution proves beyond all 8 C.C.6080/2018 reasonable doubt that on the same date, place and time, accused persons formed into unlawful assembly and picked up quarrel with C.W.1-A.Raj, and the accused assaulted C.W.1 with slippers and dishonored him and thereby committed an offence of assault or criminal force with intent to dishonor person punishable U/Sec. 355 r/w Sec. 149 of the IPC and within my cognizance.
6. Whether the prosecution proves beyond all reasonable doubt that on the same date, place and time, accused persons formed into unlawful assembly, picked up quarrel with C.W.1-A.Raj and assaulted him with hands and clubs and the accused no.4 and 6 punched C.W.1 on his chest and when C.W.1 with an intent to escape from the accused jumped from the railing of the terrace to the Ashoka tree next to the building, he slipped and fell down from the tree and sustained grievous injuries to his back and head and thereby the accused have committed an offence of voluntarily causing grievous hurt by dangerous weapons or means punishable U/s 326 r/w Sec.149 of IPC and within my cognizance. 7. What Order ?
11. My findings to the above Points are as under:
Points No.1 to 6 : In the Negative.
Point No.7 : As per final order,
9 C.C.6080/2018
For the following;
R EAS O N S
12. Points No.1 to 6 :- As these points are inter linked with each other and also similar evidence is led on all these points, I have taken all these points together for common discussion in order to avoid repetition of facts and discussion.
13. It is the case of prosecution that on 20.06.2016 at about 11.30 A.M, while C.W.1 and 4 were repairing the A.C for leakage at the above said office, at about 2.30 P.M while C.W.1 was repairing the A.C at 2nd floor near the ladies toilet, the accused no.4 misunderstood that C.W.1 was taking photos of the accused no.4 and the accused no.4 to 6 stopped the A.C. repair work and took away the mobile phone of C.W.1-A.Raj and at 3.30 P.M when C.W.1 finished his work and asked for return of his mobile phone, the accused no.1 to 7 formed into an unlawful assembly and picked up quarrel with C.W.1-A.Raj and the accused no.1 and 2 assaulted C.W.1 with club on his legs and the accused no. 3 and 7 assaulted C.W.1 with hands and assaulted C.W.1 with slippers and dishonored him . Further the accused persons assaulted him with hands and clubs and the accused no.4 and 6 punched C.W.1 on his chest and when C.W.1 with an 10 C.C.6080/2018 intent to escape from the accused jumped from the railing of the terrace to the Ashoka tree next to the building, he slipped and fell down from the tree and sustained grievous injuries to his back and head, thus committed an offence as alleged against them.
14. On behalf of prosecution in order to prove the guilt of the accused, the C.W.1injured as well as informant of crime is examined as PW.5. C.W.3 spot mahazar witness is examined as P.W.3. C.W.4 one Sri.Yugendra who is none other than the brother of C.W.4 examined as P.W.2 claiming to be eye witness to the incident. C.W.8 medical officer is examined as P.W.8. CW.11IO is examined as P.W.4.
15. The letter under which the patient was referred to NIMHANS by the K.C.General hospital is marked as Ex.P.1 through P.W.1- Medical officer. Two clubs, mobile phone of the C.W1 are marked as MO 1 To 3 through P.W.2 eye witness and the spot mahazar is marked as Ex.P.2 through P.W.2. The complaint dated 20.06.2016 is marked as Ex.P3 and FIR is marked as Ex.P.4 through P.W4 IO.
11 C.C.6080/2018
16. Further it is the contention of the accused that, while C.W.1 was working repair work he took photo in the ladies toilet and for that ladies who were in the ladies toilet screamed. When the ladies are screamed C.W.1 being afraid, tried to escape from the spot and in his effort of escaping he fell down and sustained injuries. Further it is contention of the accused that the accused not at all assaulted C.W.1 and no incident took place as alleged against the accused persons.
17. In the background of rival submissions I have carefully appreciated both oral and documentry evidence placed on record. Ex.P1 complaint speaks that CW1 injured person given statement before IO in hospital stating that since accused No.7 and on behalf of J.M. Finance failed to take safety measures he fell down from the 2nd floor due to slip and he sustained injuries. Based on this complaint C.W.11IO registered the crime in Cr No. 101/2016 for offence punishable under section 337 R/w 34 of IPC against accused No.7 and employee of K M Finance Services. The records speaks that on 29.06.2016, the C.W.11 recorded fruther statement of the C.W.1 in Hosmat Hospital in this further statement C.W.1 stated that, the accused persons assaulted him 12 C.C.6080/2018 under the wrong impression that he was taking photo in the toilet. This statement further discloses that, he was trying to escape from the hands of the accused and he jumped from 2 nd floor and in his effort due to slip of leg he fell down to the ground floor.
18. This Court observed that for what reasons this material facts were not disclosed in the Ex.P.1 complaint is not explained in this further statement. Contrary to the case of prosecution, the P.W.5 who is the complainant in this case in the chief examination itself deposed that, accused No.1 to 7 and other took him to terrace forcibly, made him to corner and assaulted him and further P.W.5 stated that the accused persons pushed him from 4th floor and he fell down from the ground floor and sustained injuries.
19. This Court observed that, in Ex.P2 spot mahazar there is mention as to statement of C.W.4 that at the time of incident C.W.1 jumped from the 2nd floor. All the statements of the witnesses under section 161 of Cr.P.C., discloses that, C.W.1 jumped from the 2nd floor and sustained injuries. During cross 13 C.C.6080/2018 examination of the P.W.2 who is none other than brother of C.W1, specific question is posed whether the accused persons pulled the C.W.1. For this specific question P.W2 given evasive answer. No where in the evidence the P.W.1 eye witness not deposed that accused were pulled C.W.1. On this aspect the evidence of P.W1 injured witness is contrary to the case of the prosecution and it creats serious doubt.
20. P.W.5 in the chief examination explained that police asked him to sign in the statement stating that if the cause of injury is mentioned as fall from height, he can get something and for that reason he did not disclose true fact at the time of giving information as per Ex.P1. Further it is admitted fact that C.W.4 and father of C.W.1 were present at the time of giving statement before IO as per Ex.P.1. On this aspect it is the case of the accused that after lodging Ex.P.1 complaint on behalf of C.W.1, people from some organization started to demand money from the accused persons and when the accused persons refused to give money, subsequently false statement is given by the C.W.1 and this false charge sheet came to be filed against the accused.
21. On this aspect this Court observed that, P.W.2 by name 14 C.C.6080/2018 Sri.Yugendra in the cross examination in para 12 at page no. 5 clearly admitted that after lodging the first complaint negotiation took place between them and accused and they demanded for medical expenses. Further he admitted that during negotiation they told the accused that they will not proceed further if medical expenses are paid. Further he admitted that after this negotation 2nd complaint is lodged. This admission of the P.W.2Yugendra supports defense of the accused.
22. Apart from this, this Court observed that I.O taken signature of the CW.1 on the further statement dated 29.06.2016. Taking signature of the witness on the statement under section 161 of Cr.P.C. is prohibited u/s 162 of Cr.P.C. Taking signature of the witness to the further statement affects the trustworthiness of the statement of the witness. It also indicates that the IO himself not satisfied with trustworthiness of the witness and for this reason he has taken signature of the witness. This aspect also creates a serious doubt in believing the case of the prosecution.
23. Further this Court observed that according to the case of the prosecution the accused persons without knowing the fact that 15 C.C.6080/2018 C.W.1 came to attened AC repair work and under wrong impression that C.W.1 took photo in the toilet the accused persons assaulted C.W.1. Further this court observed that, accused No.7 who called C.W.1 and 4 for repair work was present at the spot, even according to the case of the prosecution. P.W.5 clearly deposed that the accused No.7 also assaulted him with hands at the time of incident. This aspect also creats the doubt.
24. P.W.5 injured in the chief examination deposed that, all the accused were assaulted with hands and further he deposed that accused No.3 assaulted him with club. This say of the PW5 is contrary to the case of the prosecution. In the evidence the PW.2 and 5 not explained overt act of each accused as alleged against the accused persons. This aspect also creats serious doubt.
25. The prosecution failed to secure C.W.5 one Muniswamy who cited as circumstantial witness. According to the case of the prosecution C.W.5 rushed to the spot immediately after the incident and shifted the injured to the hospital. According to the case of the prosecution immediately after the incident C.W.4 called his friend C.W.6 over phone and C.W.6 and others shifted the injured to the hospital. C.W.7 one Praveen cited eye 16 C.C.6080/2018 witness to the incident. The prosecution did not secure C.W.5, 6, 7 to strengthen the case of the prosecution and this aspect leads to suspect the case of the prosecution, when the evidence of PW.2 and 5 is contrary to the case of the prosecution.
26. After going through the defense and considering the circumstances this court noticed that, the incident of falling down of CW.1 and sustaining injuries is not disputed. The evidence placed on reocrd is sufficient to prove that CW.1 sustianed grevious injuries. In this backbround non examination of medical officer CW.9 and 10 is not fatal to the case of the prosecution.
27. As I have stated above, the evidence placed on record is not free from material contradictions. As per the case of the prosecution C.W.1 and 4 seen the accused persons first time at the time of incident. Admittedly no identification parade is conducted during the investigation. No evidence is placed on record to show that the C.W.1 and 4 identified accused persons before the IO. Hence this court comes to the conclusion that the evidence placed on record as to identification of the accused is 17 C.C.6080/2018 not sufficient and satisfactory.
28. According to the case of the prosecution the date of alleged incident is 26.06.2016. P.W.1IO went to spot on 01.07.2016 and recovered M.O.1 and 2 clubs and MO.3 mobile phone which are produced by C.W.4. During the cross examination PW.4 explained that, since C.W.1 was hospitalized and since no one was available to show the scene of offence, he could not proceed to the spot at the earlier point of time.
29. P.W.4 I.O deposed that C.W.1 shown the spot at the time of drawing the mahazar. On looking to prosecution papers this court noticed that as per contents of Ex.P2 spot mahazar C.W.4 shown the spot to the I.O and produced two clubs and one mobile phone. This Court observed that for long period clubs were lying on the spot as per the say of the prosecution and this aspect is not probable and acceptable one. Apart from that, PW.5 prime witness did not idetified MO.1 and 2 clubs initially. Subsequently P.W.5 deposed that, the accused used the clubs to assult which are similar to the MO.1 and further PW.5 deposed that, the accused were assaulted with MO.1 and 2 clubs. As I have stated above evidence of PW.5 as to particular accused who 18 C.C.6080/2018 assaulted with club is also contrary to the case of the prosecution. These circumstances creats the serious doubt.
30. For the reasons stated above, this Court come to the clear conclusion that the evidence placed on record is not free from material contradictions and leads to serious doubt as to alleged act at the hands of the accused no.7. Further this Court obsered that, the evidence and circumstances not pointing out the guilt of the accused only. Hence this court held that it is not safe and proper to held the guilt of the accused based on the evidence placed on record. Accordingly this Court held that, the prosecution failed to bring home guilt of the accused 7 beyond all reasonable doubt.
31. Moreover in original CC No.21731/2016 the accused No.1 to 6 were acquitted. Furthermore, in view of a decision reported in 2002 (6) Supreme court 273 State of Gujarath V/s Vakar Ahmed Abdul Hamid Sheikh and others. The Hon'ble Supreme Court held that where one accused was acquitted. Subsequently, in separate trial on same evidence co-accused can not be convicted.
19 C.C.6080/2018
32. Further, it is culled out from the judgment in C.C.No 2173/2016 that the other accused of the case, whose case was standing in the same footing have been acquitted by this court as per Judgment dated:17-03-2020. The similar evidence is appearing against the present accused. So also the similar allegations are made. In view of the judgment in C.C.No.2173/2016, the present accused is also entitle to acquittal on the ground of parity.
33. On careful appreciation of evidence led on behalf of prosecution, it reveals that, none of the witnesses have spoken to with regard to essential ingredients constituting offence for which allegations were made against the accused. Hence, on careful and meticulous appreciation of evidence and considering the totality of circumstances, the prosecution has failed to prove beyond all reasonable doubt that, the charges leveled against the accused persons. Under these facts and circumstances of the case the above Points No.1 to 6 are answered in the 'NEGATIVE'.
34. Point No.7 : - In view of the findings of point No.1 to 6, this court proceed to pass the following:
20 C.C.6080/2018
O RDE R Acting U/Sec.248(1) of Cr.P.C. accused No.7 is acquitted of the offences punishable U/Secs. 143, 147, 148, 323, 324, 355 and 326 R/w Sec.149 of Indian Penal Code.
Bail bonds of the accused No.7 and Surety bonds shall stand canceled. Section 437(A) of Cr.PC has been complied.
M.O.1 and 2-clubs being worthless are ordered to be destroyed after lapse of appeal period.
M.O.3- mobile phone is ordered to be returned to the complainant/C.W.1 after lapse of appeal period.
(Judgment typed to my online dictation by the Stenographer, transcript corrected and signed by me, then pronounced by me in the Open Court on this the 28 th day of June, 2022).
(LATHA.J) XXXII Addl.C.M.M BENGALURU 21 C.C.6080/2018 ANNEXURES List of the Witnesses examined by the Prosecution in original CC No.21731/2016 :
PW-1 : Dr.Suma CW-8 05.07.2018 PW-2 : Yugendra CW-4 23.03.2019 PW-3 : Anandha.K.C CW-3 23.03.2019 PW-4 : H.R.Srinivasaiah CW-11 23.03.2019 PW-5 : A.Raja CW-1 06.06.2019
List of the Documents exhibited for the Prosecution in original CC No.21731/2016 :
Ex.P1 : Referral letter Ex.P1 (a) : Signature of PW-1 Ex.P2 : Spot Mahazar Ex.P2(a), : Signature of Witness (b ) Ex.P3 : Complaint Ex.P3(a) : Signature of PW-4 Ex.P4 : FIR Ex.P4(a) : Signature of PW-4
List of the MOs marked on behalf of the Prosecution in original CC No.21731/2016 ::
M.O.1 and 2 : Clubs M.O.3 : Mobile phone List of the Witnesses examined for defence: -Nil--
List of the Documents exhibited for defence in original CC No.21731/2016 :
Ex.D1 to 4 Photos
List of the MOs marked on behalf of Defence: -Nil--
(LATHA.J)
XXXII Addl.C.M.M
BENGALURU
22 C.C.6080/2018
Order pronounced in the open court
(vide separate judgment)
O RDE R
Acting U/Sec.248(1) of Cr.P.C. accused No.7 is acquitted of the offences punishable U/Secs. 143, 147, 148, 323, 324, 355 and 326 R/w Sec.149 of Indian Penal Code.
Bail bonds of the accused No.7 and Surety bonds shall stand canceled. Section 437(A) of Cr.PC has been complied.
M.O.1 and 2-clubs being worthless are ordered to be destroyed after lapse of appeal period.
M.O.3- mobile phone is ordered to be returned to the complainant/C.W.1 after lapse of appeal period.
(Latha. J) XXXII Addl.C.M.M, Bengaluru 23 C.C.6080/2018