Bangalore District Court
State Of Karnataka By; vs Ameen S/O Late.Azeez on 24 February, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 24th day of February 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1020/2015
COMPLAINANT : State of Karnataka by;
Banashankari Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Ameen S/o Late.Azeez,
Aged about 32 years,
Residing at No.16,
Opposite Govt. Urdu School,
Yarab Nagara, Banashankari 2nd Stage,
Bengaluru.
2. Nizamuddin Suhail @ Iqbal
S/o Late.Azeez,
Aged about 22 years,
Residing at No.16,
Opposite Govt. Urdu School,
Yarab Nagara, Banashankari 2nd Stage,
Bengaluru.
3. Irfan S/o Shahajan,
Aged about 24 years,
Opposite Masjid,
2 S.C.1020/2015
J.P.Nagara Post,
Bengaluru - 78.
4. Munna .........Split-up
5. Chand Pasha @ Chan .........Split-up
(By Sri.K.B.S., Advocate)
1. Date of commission of offence 01-12-2013
2. Date of report of occurrence 01-12-2013
3. Date of arrest of accused No.1 & 3 02-12-2013
Period undergone in custody 2 Years, 2 Months, 21
Days
4. Date of arrest of accused No.2 02-12-2013
Date of release of accused No.2 20-05-2014
Date of rearrest of accused No.2 11-08-2014
Period undergone in custody 1 Year, 11 Months, 29
Days
5. Date of commencement of evidence 22-01-2016
6. Date of closing of evidence 28-01-2016
7. Name of the complainant Sri.Manju, P.S.I.
8. Offences complained of Sec.399 and 402 IPC
9. Opinion of the Judge As per the final order
10. Order of sentence Offences not proved
JUDGMENT
This case is committed by the III Addl.Chief Metropolitan Magistrate Court, Bengaluru City, to the Hon'ble Prl. City Civil and 3 S.C.1020/2015 Sessions Court, Bengaluru on the ground that offences punishable under Sec.399 and 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Banashankari Police Station has filed charge-sheet against accused for the offences punishable under Sec.399 and 402 of IPC arising out of Banashankari Police Station in Crime No.426/2013.
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 Banashankari Police Station on 01-12-2013 at 9.00 p.m. within the limits of Banashankari Police Station, when patrolling received credible information stating that within the limits of his Police Station at Gururaja Layout, 100 Feet Ring Road, near Titan Watch Shop open space, 5-6 persons assembled armed with deadly weapons and making preparation to commit dacoity of the commuters. Thereafter, CW.1 has called CW.4 to 7-officials and CW.2 and 3-Panchas and informed the information received by him to them thereafter CW.1 along with his officials and Panchas came near the spot in the official vehicle at 9.30 p.m. CW.1 and his 4 S.C.1020/2015 officials stopped some distance away from the spot and observed the spot. On the spot, 5-6 persons assembled armed with deadly weapons. CW.1 confirmed that information received is correct, thereafter CW.1 and his officials conducted raid and catch-hold 4 persons and one person ran away. The said persons were possessing deadly weapons like Long, Rod, Club, Knife. The said persons told the name of the person ran away as Chand Pasha.
Thereafter, CW.1 has drawn Mahazar on the spot and seized the deadly weapons in presence of the Panchas. Thereafter, CW.1 has brought the said persons along with the properties seized to the Police Station and produced the said persons and properties seized along with the Report before CW.8.
3(a) CW.8 who is the Police Inspector of Banashankari Police Station on 01-12-2013 at 11.30 p.m., received the Report from the CW.1 and registered the case in Crime No.426/2013 and submitted the FIR to the court. On the same day, CW.8 has arrested the said persons. CW.8 has subjected the properties under P.F.223/2013. On 02-12-2013, CW.8 has recorded the statements 5 S.C.1020/2015 of CW.2 to 7 and thereafter as the investigation is completed, CW.8 has filed the charge-sheet.
4. After filing the charge-sheet by the Investigating Officer, III Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered the case in C.C.6549/2014. Thereafter, III Addl.Chief Metropolitan Magistrate Court, Bengaluru has secured the presence of accused No.1 to 3 and 5. The III Addl.Chief Metropolitan Magistrate Court, Bengaluru has issued NBW's for securing the presence of accused No.4 and NBW returned unexecuted, so III Addl.Chief Metropolitan Magistrate Court, Bengaluru has splitted the case against accused No.4 and directed the Investigating Officer to file separate charge-sheet. Thereafter, III Addl.Chief Metropolitan Magistrate Court, Bengaluru has submitted charge sheet copies to accused No.1 to 3 and 5 as contemplated under Sec.207 of Cr.P.C., thereafter the III Addl.Chief Metropolitan Magistrate Court, Bengaluru has committed the case against accused No.1 to 3 and 5 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1020/2015 6 S.C.1020/2015 and made-over to this court for disposal according to law against accused as the offences alleged are triable by the Sessions Court.
5. After receipt of the papers this court has secured presence of accused No.1 to 3. Even though this court has issued NBW's against the accused No.5 on several occasions, the same returned unexecuted, so case against accused No.5 is splitted and office is directed to call separate charge-sheet against accused No.5. Thereafter, this court has heard the counsel for accused and learned Public Prosecutor 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 IPC and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried.
6. Thereafter, Prosecution has called upon to prove the guilt of the accused by examining the Prosecution witnesses. 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 2 documents as per Ex.P1, 2 and marked 4 material objects as MO.1 to 4 and closed its side. Thereafter, accused examined under Sec.313 Cr.P.C. to enable them to explain the incriminating 7 S.C.1020/2015 circumstances appearing against them in the 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.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor on behalf of the state in length.
8. The points that arise for my determination are:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 to 3 along with splitted accused No.4 and 5, on 01-12-2013 at 9.00 p.m., within the limits of Banashankari Police Station, at 2nd Stage of Gururaja Layout, 100 Feet Ring Road, abetting Titan Watch Showroom in the open space assembled armed with deadly weapons and making preparation to commit dacoity and thereby committed the offence punishable under Sec.399 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that accused No.1 to 3 along with splitted accused No.4 and 5, on the above said date, time and place assembled armed with deadly weapons 8 S.C.1020/2015 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 : In the Negative;
Point No.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 have committed the offences punishable under Sec.399 and 402 of IPC and in order to prove the guilt of the accused the prosecution in all examined four witnesses and they are; PW.1-Venkatesh son of Balya Nayak-Police Constable, PW.2-B.P.Manju son of Puttasiddaiah- complainant, PW.3-Yallappa son of Chinnappa-Pancha on Spot cum Seizure Mahazar Panchanama, PW.4-Chinnathambi son of Muniswamy-Pancha on Spot cum Seizure Mahazar Panchanama. 9 S.C.1020/2015
12. The prosecution in order to prove guilt of the accused in all got marked 2 documents and they are; Ex.P1-Spot cum Seizure Mahazar, Ex.P2-Complaint.
13. Prosecution got marked 4 Material Objects and they are; MO.1-Long, MO.2-Rod, MO.3-Club, MO.4-Knife.
14. Prosecution in order to prove the guilt of the accused examined PW.1. PW.1 is the Police Constable and he in his evidence stated that on 01-12-2013 at about 9.00 p.m., CW.1 called him, CW.4, 5 and 7 and told them that he has received credible information stating that near Gururaja Layout, Ring Road, Titan Watch Showroom, in the open space 5-6 persons assembled armed with deadly weapons and making preparation to commit dacoity. CW.1 has also called CW.2, 3-Panchas and informed the information received by him to them also thereafter he, CW.1, officials and Panchas came near the spot and stopped some distance away from the spot and observed the spot, on the spot 5 persons assembled armed with deadly weapons. Thereafter, they have conducted raid and catch-hold 4 persons, one person ran away. CW.1 has catch- hold one person and he told his name as Ameen and he was 10 S.C.1020/2015 possessing one Long. CW.5 has catch-hold one person, he told his name as Nizamuddin Syed and he was possessing Rod. He catch- hold one person, he told his name as Irfan and he was possessing one Club. CW.7 has catch-hold one person, he told his name as Munna and he was possessing one Knife. The said persons have told the name of the person ran away as Chand Pasha. Thereafter, CW.1 has drawn Mahazar and seized the deadly weapons there in presence of Panchas thereafter they have brought the said persons along with the properties seized to the Police Station and produced before CW.8. CW.1 has submitted Report and identified the accused No.1 to 3 present before the court as the persons assembled there. Further this witness has identified the properties seized as MO.1 to 4. This witness has been cross-examined by the counsel for the accused and this witness in his evidence stated that on that day when he received the information, they were patrolling within the limits of their Police Station and after receipt of information from CW.1, they have not came to the Police Station they directly went to the spot which is contrary to the evidence of CW.1. CW.1 has stated that, after he received the information he came to the Police Station and 11 S.C.1020/2015 he called other officials and Panchas in the Police Station and thereafter they went to the spot. Further this witness in the cross- examination admitted that, on that day the Mahazar was written by the Station Writer Chikkanna. Further this witness has admitted that, on that day the Station Writer Chikkanna has not accompanied them for raid and further this witness has admitted that on MO.1 to 4 chits are affixed and writings on the said chits were made on the spot itself. Further this witness has stated that, on the said chits P.F. Number and Crime Number is written.
15. Prosecution examined PW.2 and PW.2 is the complainant and he in his evidence stated that on 01-12-2013 at 9.00 p.m., he was patrolling within the limits of his Police Station and he received credible information stating that at Gururaja Layout 100 Feet Road in the open space 5-6 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, he called CW.4 to 7-officials, CW.2, 3-Panchas and informed the information received by him to them. Thereafter, he, Panchas and officials went to the spot in the Departmental vehicle and stopped near the spot at about 9.30 p.m. and observed the spot. 12 S.C.1020/2015 On the spot, 5 persons were assembled armed with deadly weapons and he confirmed that the information is correct thereafter they have conducted raid and catch-hold 4 persons, one person ran away. He catch-hold one person and the said person told his name as Ameen and he was possessing one Long, accused No.2-Nizamuddin was possessing Rod, accused No.3-Irfan was possessing Club, accused No.4-Munna was possessing one knife. The said persons told the name of the person ran away as Chand Pasha. Thereafter, he has drawn the Mahazar and seized the deadly weapons in presence of Panchas thereafter he has brought the said persons along with the properties seized to the Police Station, prepared Report and produced the said persons, properties and Report before CW.8 and identified the accused No.1 to 3 as the persons assembled there on that day and identified the properties seized on that day as MO.1 to
4. This witness has been cross-examined and in the cross- examination this witness has stated that, he called his officials and Panchas in the Police Station and from the Police Station they went to the spot which is contrary to the evidence of PW.1 and the said contradiction is material one. Further this witness in the cross- 13 S.C.1020/2015 examination admitted that, after they went to the spot, no one has came to the spot from the Police Station. Further this witness has admitted that Mahazar was written by the writer of the Station Chikkanna. Further this witness has stated that the Writer Chikkanna was not accompanied them for raid on that day. Further this witness has admitted that, on the chits affixed to MO.1, Crime Number and P.F.Numbers were written and the said writings were made on the spot itself.
16. Prosecution has examined PW.3 and PW.3 is the Pancha who accompanied the complainant for raid and he in his evidence stated that on 01-12-2013 at about 9.30 p.m., when he was near Titan Watch Showroom, Police called him and CW.3 and on that day he was near SLV Hotel. Police have told that 4-5 persons have assembled near Titan Showroom for committing dacoity and taken him there and he went there and there 4-5 persons were standing, Police have catch-hold 4 persons one person ran away. They were possessing Knife, Rod, Long and Club. Police have kept the said deadly weapons in white cloth and sealed them and he signed on the Mahazar there. Police have taken the said persons 14 S.C.1020/2015 and properties from them and time was 11.30 at that time and identified the Mahazar as Ex.P1 and identified the deadly weapons seized by the Police on that day as MO.1 to 4. This witness has given contrary statement to that of evidence of CW.1 and stated that Police called him from SLV Hotel. Further this witness has admitted that he is doing real estate business and he visit Banashankari Police Station frequently. Further this witness has stated that, on that day he has not went to the Police Station. Further this witness in the cross-examination admitted that, he has signed Ex.P1(b) in the Police Station and the said admission of this witness create suspicion regarding the presence of this witness at the time of alleged raid.
17. Prosecution examined PW.4. PW.4 in his evidence stated that on 01-12-2013 at 9.30 p.m., he after finishing his work proceeding at 100 feet road, Titan Shown Room at that time Police came there and Police called him and told that in the open space 4-5 persons are sitting for committing theft. Police have also called CW.2 there and in the open space 5 persons were assembled armed with deadly weapons and Police have told them that they have came there for committing robbery and Police have catch-hold the said 15 S.C.1020/2015 persons and the said persons were possessing Rod, Knife, Long and Police have seized the said articles, drawn the Mahazar and obtained his signature and identified the Mahazar as Ex.P1 and identified his signature as Ex.P1(c). Further this witness has identified the deadly weapons seized on that day as MO.1 to 4 and also stated that accused No.1 to 3 are the persons who assembled on the spot. This witness has been cross-examined and in the cross-examination this witness has admitted that he is not knowing what is written in Ex.P1, he has signed on Ex.P1 as Police asked him to sign.
18. It is the specific case of the accused during the cross- examination of prosecution witnesses that, they have not committed any offences as alleged against them. Police have brought them to the Police Station earlier to the alleged incident and concocted a false story and got implicated in the present case. In the present case, complainant in his evidence stated that, when he was patrolling within the limits of his Police Station, he received credible information and thereafter he came to the Police Station and called his officials and Panchas there and from the Police Station they went to the spot. Whereas PW.1 has stated that CW.1 called them and they directly 16 S.C.1020/2015 went to the spot and they have not came to the Police Station on that day, which is contrary to the prosecution case. Further PW.1 and 2 have admitted that the Mahazar is written by the Station Writer one Chikkanna and further they have admitted that Chikkanna was not accompanied them for raid. Further CW.1 has admitted that after they went for raid, no one has came from the Police Station to the spot. Further PW.1 and 2 have admitted that on MO.1 to 4 chits were affixed and on the said writings P.F.Number and Crime Number is written and the said writings is made on the spot itself. MO.1 to 4 were seized before registration of the case and P.F.Number and Crime Number will be given after registration of the case and the said version of PW.1 and 2 create suspicion regarding the incident. Further PW.3 who is the Pancha alleged to have accompanied the complainant for raid, in his evidence stated that when he was near SLV Hotel, the Police called him to the spot whereas complainant says that he called the Panchas to the Police Station which is contrary to the prosecution case. Further PW.3 has stated that he has put his signature Ex.P1(b) in the Police Station which is contrary to the prosecution case and the said contradiction is material one. 17 S.C.1020/2015 PW.4 is another Pancha alleged to have accompanied the complainant for raid and he also stated that when he was proceeding on the spot, the Police have called him to the spot which is contrary to the evidence of PW.1. PW.4 has stated that he is not knowing what is written in Ex.P1 and he has put his signature on Ex.P1 as Police have asked him to sign. So, the evidence of PW.1 to 4 will not prove the guilt of the accused beyond reasonable doubt. 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 18 S.C.1020/2015 eliminated. Decision of Patna High Court, Reversed."
19. From the principles laid down in the above cited rulings of our own Hon'ble Apex Court, it is clear that only assembling the persons with deadly weapons itself will not prove that they have committed offence under Sec.399, 402 of IPC. As per the well settled principle of law, the benefit of doubt goes to the accused and in the present case accused are entitled for the benefit of doubt. In the present case looking from any angle, the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. The evidence of PW.1 to 4, Ex.P1 and Ex.P2, M.O.1 to 4 will not prove the guilt of the accused beyond reasonable doubt. Hence giving the benefit of doubt to the accused, I hold that prosecution 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.
20. POINT No.3: In view of my findings point No.1 and 2 and reasons stated there, I proceed to pass the following: 19 S.C.1020/2015
ORDER Acting under Sec.235(1) Cr.P.C. accused No.1- Ameen, accused No.2-Nizamuddin Suhail, accused No.3- Irfan are acquitted for the offences punishable under Sec.399 and 402 of IPC.
Bail bonds of the accused shall stands cancelled forthwith.
As the case against accused No.4 and 5 is splitted, no order as to disposal of MO.1 to 4.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 24th day of February, 2016).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Venkatesh CW.6 22-01-2016
PW.2 B.P.Manju CW.1 28-01-2016
PW.3 C.Yallappa CW.2 28-01-2016
P.W.4 M.Chinnathambi CW.3 28-01-2016
Documents marked for the prosecution:
Ex.P1 Spot and seizure mahazar PW.1 28-01-2016
Ex.P1(a) Signatures of PW.2 PW.2 "
20 S.C.1020/2015
Ex.P2 Complaint " "
Ex.P2(a) Signatures of PW.2 " "
Material objects marked for the prosecution:
MO.1 Long MO.2 Rod MO.3 Club MO.4 Knife
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.