Bangalore District Court
State By K.G.Halli vs Syed Azam on 23 February, 2015
BEFORE THE FAST TRACK COURT-III, MAYOHALL
UNIT, BANGALORE.
Present: Smt. B.S.REKHA, B.A.,(Law), LL.B.,
P.O & Addl.Sessions Judge, FTC-III,
Mayohall Unit, Bangalore.
Dated this the 23rd day of February 2015.
Session Case No:528/2012
Complainant: State by K.G.Halli
Police Station, Bangalore.
(By Public Prosecutor)
Vs.
Accused: 1. Syed Azam, s/o Syed Hyder,
Aged 51 years (dead)
2. Mohammed Shujath Ali @ Shujath,
s/o Abdul Gaffar,
aged 42 years,
r/at near Burial ground,
near Urdu school, Kaverinagar,
Garudacharpalya, Bangalore.
.
3. Varadaraju,
s/o Harikrishna,
Aged 30 years,
r/at No.10, Kuvempunagar,
near Vijinapura,
K.R.Puram, Bangalore.
(A.2,3: By Sri MHG Advocate)
4. Christopher @ Satish,
s/o late Sarathi, aged 35 years
2 SC.528/12
r/at No.25, Rahul Nivas,
behind Jubilee college,
Greenwood layout,
Jinkethimmenahalli,
K.R.Puram, Bangalore
5. Aleem, aged: 34 years (absconding)
6. Munna, aged: 35 years (absconding)
7. Kausar, aged: 36 years (absconding)
8. Sujith, Orissa state (absconding)
9. Kareem Khan @ Lal,
s/o late Usman Khan, aged 24 years,
No.91/1 c/o Farmina,
Near Anupama School,
Saibaba layout, Andarahalli
Main road, Peenya 2nd stage,
Bangalore.
No.16, Masjid road, Oorgaumpet,
K.G.f, Kolar District.
(By Sri NN Advocate)
TABULATION OF THE EVENTS
01 Date of Commission of offence 26.10.2011
02 Date of report of offence 26.10.2011
03 Name of the complainant Hariappa
04 Nature of offence complained u/s 399, 402 IPC
& Sec.5 & 27 of
Indian Arms Act
05 Date of commencement of 8.01.2013
recording evidence:
3 SC.528/12
06 Date of closing of recording of 22.12.2014
evidence:
07 Date of judgment: 23.02.2015
08 Opinion of the Judge: Accused are
acquitted
JUDGMENT
The charge sheet is submitted by the Police Sub- Inspector, Mahadevapura Police Station against these accused for the offences punishable under Sec.399, 402 of the IPC and u/s 5 and 27 of Indian Arms Act.
2. Brief facts of the case as alleged are that on 26.10.2011 at about 9.00 p.m. the accused persons assembled in a blue Hyundai Santro car bearing No.KA- 04-MC 789 near Hoodi Railway Gate and were making preparation to commit robbery on the persons and vehicles passing on the said road by threatening them with lethal weapons, i.e. pistol, long, machu and clubs in their hands and thereby committed the offences 4 SC.528/12 punishable U/s 399,402 IPC.& Sec.5 and 27 of Indian Arms Act.
3. After receipt of the complaint, Mahadevapura Police registered the case in crime No.521/2011 for the offences punishable under Sec.399, 402 IPC and Sec.5 and 27 of Indian Arms Act. FIR sent to the jurisdictional court i.e. X Addl.Chief Metropolitan Magistrate, Mayo Hall, Bangalore City. After submission of the charge sheet, the X ACMM court complied with the procedure, i.e., provided under Sec.207 of the Cr.P.C and copy of the charge sheet was furnished to the accused and as the offences punishable under Sesc.399,402 are exclusively triable by this court, X ACMM court has committed the case to this court vide order dated 15.02.2012.
4. The Hon'ble Principal City Civil and Sessions Judge, Bangalore City, on receipt of records from the learned X ACMM, Bangalore, registered a case in 5 SC.528/12 S.C.528/2012, made over the same to this Court for disposal as per law.
5. A.1 is reported to be dead. The case against accused No.5 to 8 is split up before the trial court itself. This Court has framed the charge against the accused No.2, 3, 4 and 9 for the offence punishable u/s 399, 402 of IPC. & Sec.5 and 27 of Indian Arms Act. The accused pleaded not guilty and claimed to be tried.
6. The prosecution to prove the guilt of the accused has examined PW 1 to 4 and got marked Ex. P1 to P5 and got marked Mo.1 to 5.
7. After closing of the prosecution evidence case was posted for recording statement of the accused as provided under Sec.313 Cr.P.C. and the statement was recorded. The defence has not led any evidence. 6 SC.528/12
8. Heard Public Prosecutor and also heard the learned counsel for the accused.
9. The following point do arise for my consideration is:
1. Whether the prosecution proves beyond reasonable doubt that on 26.10.2011 at about 9.00 p.m. the accused persons assembled in a blue Hyundai Santro car bearing Reg.No.KA-04-MC-789 near Hoodi railway gate, were making preparation to commit dacoity on the passersby armed with deadly weapons in their hands and thereby committed the offences punishable U/s 399, 402 IPC & Sec.5 and 27 of Indian Arms Act?
2. What order?
10. After hearing the learned Public Prosecutor and the learned counsel for the accused and after going through the evidence of the witnesses, my answer to the above said points are as under:
Point No.1 : In the negative Point No.2 : As per final order for the following:
REASONS 7 SC.528/12
11. In order to prove the case of the prosecution, CW.1 examined as PW.1 H.Hariyappa PSI had categorically stated on 26.10.2011 at 9 00 p.m. while himself and his staff Amrutesh, Doraiswamy, Mohan Kumar, Choodalingaiah, Srinivas, Devaraj, Pratap and Siddanagowda were doing beat duty at Hoodi circle, he received information that some 7 persons along with blue Santro car were making preparation to commit dacotiy near Hoodi Railway gate. Immediately he sent his staff and collected search light and solar light from the police station and called two panch witnesses. He informed the information to them and went to the spot at 9.30 p.m. He found 7 persons along with blue Hyudai car No.KA-04-MC-789 were holding deadly weapons and they were discussing in Kannada, Tamil and Urdu languages. When they went near the spot, they heard those persons were discussing to commit dacoity and to rob the valuables from the passersby. Immediately they attempted to arrest those persons. 4 persons ran away 8 SC.528/12 and they could secure only 3 persons by name Syed Azam, Mohammed Sujath Ali and Vardaraju. He identified accused No.2 and 3. Accused No.1 is no more. 1st accused was holding sickle, 2nd accused was holding club and chillie powder packet, 3rd accused was holding .32 Made in China pistol with 4 live bullets. On enquiry, they told that they are waiting to commit dacoity. The persons who ran away from the spot are Christopher @ Satish, Kausar, Aleem Munna. They prepared the mahazar at the spot and seized the articles. He identified Ex.P.1 and signature. He had handed over the accused mahazar along with the report to the I.O as per Ex.P.2 . He identified M.Os 1 to 5. There is a recital in the requisition that on verification of the 4 bullets, it was found that they are not live bullets. There is a recital on M.O.4 that it is for military purpose only. 2nd accused told that he brought that M.O.4 from Orissa. They have seized the vehicle. When they received information, they were at Hoodi village and took panch witnesses. They 9 SC.528/12 spent 20 minutes on this. They have not given any written notice to the panch witnesses. The panch witnesses are the residents of Vijinapura and Ramamurthy nagar. The public were moving at the spot and they had no impediment to get them as witnesses. He does not remember as to whom he sent to secure the panch witnesses. When they reached Railway gate, it was 9.30 p.m. They saw the accused at a distance of 25 meters. He does not remember the colour of the clothes worn by the accused on that day. He cannot say the talks of each accused. They went in the jeep to the spot. They have not verified the jeep. He denied that they have arrested the accused at the spot but they have brought the accused from their home.
12. CW.3 Suresh examined as PW.2 had categorically stated about 1 ½ years back when he came after completion of his work, at Whitefield at 5.00 p.m. he signed a document i.e. Ex.P.1. He is not aware of the contents of the mahazar. The police have not seized any 10 SC.528/12 articles in his presence. He had not seen the accused earlier. He turned hostile to the case of the prosecution in entirety.
13. CW.6 Rahmathulla is examined as PW.3 who is the owner of Ford Ikon Car No.KA-03-Z-9740. He is not aware of the accused Kareem Khan. He had not given that car to Kareem Khan. He is not aware of one Christopher. He turned hostile to the case of the prosecution in entirety.
14. CW.15 A.Venkatesh H.C. is examined as PW.4, had categorically stated that as per the instructions of the Police Inspector on 25.11.2011 he handed over the pistol and 4 rounds to Forensic Lab and received the endorsement. On the same day after examination it was handed over to him and he produced before the Police Inspector along with his statement. He saw those articles. They were opened before him in the Lab.
11 SC.528/12
15. The documents relied upon the by the prosecution are Ex.P.1 which is the raid mahazar. Ex.P.2 is the report, Ex.P.3 is the photograph marked on 8.1.2013 and another Ex.P.3 is the statement of J.W.Suresh marked on 5.4.2013 and Ex.P.4 is the statement of one Rahamathulla.
16. In this case on perusal of the overall oral and documentary evidence on record, it could be seen that the allegations of the complainant is that when they were doing beat duty near Hoodi village, they received information that near Hoodi Railway gate, some 7 persons along with a Hyundai car were making preparation to commit dacoity armed with deadly weapons. He had stated that he went along with the staff to the spot to conduct raid and he could be able to do the raid but he was able to secure only 3 persons. The remaining 4 persons ran away from the spot. Now accused No.1 is no more. Further the statement of this PW.1 is not supported by the evidence of PW.2. PW.2 is 12 SC.528/12 a witness to raid and is a panch witness. However according to him near Whitefield about 1 ½ years back at 5.00 p.m.his signature was taken. However, according to the complainant, he received the intimation at 9.00 p.m. and conducted the raid thereafter. There is no corroboration about the timings of the signature to the mahazar. This witness has shown ignorance about the contents of Ex.P.1 and he had not at all identified the accused. PW.3 is the owner of the car had stated that he had not handed over the car to the accused. The evidence of these two witnesses is not supporting the case of the prosecution. Then, there remains the evidence of PW.4 who is the Head constable who took the pistol with 4 rounds to the lab and handed over the report to the Police Inspector. In this case, the material witnesses examined on behalf of the prosecution are PW.1 to 4. PW.1 though had stated about this incident, his evidence is not supported by any independent witnesses. Even no supporting official is examined to 13 SC.528/12 prove the case of the prosecution. In this case the I.O. is also not examined inspite of giving sufficient opportunities. The contention of the prosecution is that they have seized the pistol with 4 live bullets but the court had observed while marking the material objects that those 4 bullets are not live bullets. Even according to PW.4, he took 4 live bullets to Forensic lab. Then what happened to those bullets is not explained by the prosecution. In this case, if the evidence of PW.2 is believed no raid was conducted at the spot at the time stated by the complainant. This is not a case wherein the mahazar will be conducted at a different time or day. The mahazar has to be conducted immediately after the raid, which is not done if we look into the evidence of PW.4. In this case the materials available on record are insufficient to connect the accused to commit the crime. The prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. Hence, I answer this point in the negative 14 SC.528/12
17. Point No.2: In view of my finding on the above said point, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., the accused No.2 Mohammed Shujath Ali @ Shujath, accused No.3 Vardaraju, accused No.4 Christopher @ Satish and accused No.9 Kareem Khan @ Lal are acquitted of the offences punishable u/s 399, 402 IPC and Sec.5 and 27 of Indian Arms Act.
Their bail bonds and surety bonds stand cancelled.
Keep the properties in tact as there is split up case against the other accused. (Dictated to the Judgment-writer, transcript corrected, signed and then pronounced in the open court this the 23rd day of February 2015) (B.S.Rekha) P.O & Addl.Sessions Judge, FTC-III, Mayohall Unit, Bangalore.15 SC.528/12
ANNEXURE List of witnesses examined for the prosecution:
PW1: Hiriyappa PW2: Suresh PW3: Rahmathulla PW4: A.Venkatesh
List of documents exhibited for the prosecution:
Ex.P1: Mahazar Ex.P1(a) Signature of the complainant. Ex.P.1(b) signature of PW.2 Ex.P.2: report of PW.1 P2(a) signature of the complainant Ex.P.3 photo(marked on 8.1.2013) Ex.P.3 statement of J.W.Suresh (marked on 5.4.2013) Ex.P.4 statement of PW.2 Ex.P.5 statement of PW.3 Material Objects marked on behalf of the prosecution:
MO1: machu MO 2: club MO3: chillie powder MO4: pistol MO5: bullets 16 SC.528/12 Evidence adduced on behalf of the defence :
- Nil-
Documents marked on behalf of the defence :
-Nil-
.....
(B.S. Rekha) P.O & Addl.Sessions Judge,FTC-III Mayohall Unit, Bangalore.17 SC.528/12