Bangalore District Court
State By vs Rehamathulla @ Rehamath on 2 September, 2016
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.CHANDRASHEKHAR MARGOOR, B.Sc., LL.B.(Spl)
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 2nd day of September, 2016.
S.C.No.373/2015
COMPLAINANT: State by,
Subramanyapura Police,
Bengaluru.
(By learned Public Prosecutor)
.Vs.
ACCUSED : 1. Rehamathulla @ Rehamath,
S/o.Hussain Sab,
30 years,
R/of.Uppalagere Village,
Ranganathapura Post,
Hiriyur Taluk,
Chitradurga District.
2. Syed Abdulla @ Abdulla,
S/o.Syed Sab,
40 years,
R/of.Near Ramanna's Pettyshop,
Near Hindu Burial Ground,
Harinagar, Bengaluru.
3. Rajasab @ Budeen,
S/o.Kuri Budeen Sab,
40 years,
R/of.Dahoodpalya,
Honnaganahalli Post,
Shira Taluk,
Tumkur District.
2 S.C.No.373/2015
4. Girisha, S/o.Srirangappa,
28 years,
R/of.Gowdanapalya,
Budavanahalli Post,
Dodderi Hobli,
Madhugiri Taluk,
Tumkur District.
5. Amzad ........ split-up.
JUDGMENT
The P.S.I., of Subramanyapura Police Station, Bengaluru has filed charge sheet against the accused alleging that accused have committed the offences punishable under Sections 399 and 402 of I.P.C.
2. The learned II Addl. C.M.M., Bengaluru after complying with the provisions under Section 207 Cr.P.C., committed the case to the Court of Prl. City Civil & Sessions Judge, Bangalore under Section 209 Cr.P.C., as the alleged offences are exclusively triable by the Court of Sessions and thereafter, this case is made over to this court for trial in accordance with law. The accused Nos.1 to 4 are on bail at the time of committal of the case.
Since the accused No.5 is absconding, the case against the accused No.5 is split-up by the learned II Addl. C.M.M., Bengaluru vide order dated:26.02.2015 and a separate case is registered against the accused No.5 in C.C.No.6029/2015.
3 S.C.No.373/20153. Brief facts of the case of prosecution are as follows :
On 10.12.2014 at about 5-00 a.m., when C.W.1- Sri.Kempegowda, A.S.I., of Subramanyapura Police Station, Bengaluru was on patrolling duty within the limits of his Police Station, he received the credible information that in the vacant space near Double Road, situated at Royal Lake Front Layout, J.P.Nagar 8th Phase, within the limits of Subramanyapura Police Station, Bengaluru, five persons coming in an autorickshaw bearing Registration No.KA-05- C-1505 belongs to the accused No.2, by holding deadly weapons i.e., clubs, knife, Iron rod, etc., in their hands were making preparation to commit dacoity of the persons, who are coming on the said road.
The complainant C.W.1 on receiving the credible information went to the spot along with his staff and panchas at about 5.25 a.m., and after ascertaining their hearing of conversations of said persons and confirmed about the credible information and surrounded them and apprehended the accused Nos.1 to 4 along with deadly weapons and seized them under the mahazar. One person was succeeded in fleeing away from the spot. Thereafter, took the accused Nos.1 to 4 to the police station along with the seized articles and produced them before the S.H.O., along with his report.
On the strength of the report submitted by C.W.1, the S.H.O., has registered the crime in their Police Station Crime No.712/2014 for the offences punishable under Sections 399 and 402 of I.P.C. Thereafter, the Investigating 4 S.C.No.373/2015 Officer has recorded the voluntary statements of the accused Nos.1 to 4 and also recoded the statements of panch witnesses and his staff. Thereafter, he produced the accused Nos.1 to 4 before the jurisdictional Magistrate along with RA who in turn remanded them to the judicial custody.
The Investigating Officer after completing the investigation has filed the charge sheet against the accused Nos.1 to 4 for the offences punishable under Sections 399 and 402 of IPC, by showing the accused No.5 as absconding accused.
4. There is prima-facie case against the accused Nos.1 to
4. Hence, charge is framed against the accused Nos.1 to 4 for the offences punishable under Sections 399 and 402 of I.P.C. The accused Nos.1 to 4 have pleaded not guilty and claimed to be tried. Hence, the prosecution was called upon to prove its case by examining its witnesses.
5. In order to bring home the guilt of the accused Nos.1 to 4, the prosecution has examined three witnesses as P.Ws.1 to 3 and got marked the documents Exs.P.1 to 5 and M.Os.1 to 5. After closure of the evidence on the side of prosecution, statement of accused Nos.1 to 4 under Section 313 Cr.P.C., was recorded and the accused Nos.1 to 4 have denied incriminating evidence stated against them and not lead the defense evidence on their behalf.
5 S.C.No.373/20156. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused Nos.1 to 4.
7. In view of the evidence of prosecution witnesses and the arguments of learned P.P., and learned advocate for accused Nos.1 to 4, the points which arise for my consideration are:
1. Whether the prosecution has proved its case beyond reasonable doubt that on 9.12.2014 at about 5-25 a.m., at the vacant space, near Double Road, situated at Royal Lake Front Layout, J.P.Nagar 8th Phase, within the limits of Subramanyapura Police Station, Bengaluru, the accused Nos.1 to 4 along with the split-up accused No.5 had made preparation to commit dacoity on the passers thereon by holding deadly weapons like clubs, knife, iron rod, etc., and thereby, committed the offences punishable under Sections 399 and 402 of I.P.C?
2. What Order ?
8. My findings on the above points are as under :
POINT No.1 - In the Negative,
POINT No.2 - As per final order,
for the following :
REASONS
9. POINT No.1 : The P.S.I., of Subramanyapura Police Station, Bengaluru has laid the charge sheet against the accused for the offences punishable under Sections 399 and 402 of I.P.C.
6 S.C.No.373/2015The prosecution in order to bring home the guilt against the accused Nos.1 to 4 has got examined three witnesses as P.Ws.1 to 3 and got marked the documents Exs.P.1 to 5 and M.Os.1 to 5.
10. P.W.1-Sri.B.C.Kempegowda, the then A.S.I., of Subramanyapura Police Station, Bengaluru has deposed that on 9.12.2014, he was on beat duty in Hoysala 43 vehicle. At about 5-00 a.m., when he reached near Royal Lake Front Layout, he heard the voice of two persons in the dark and also he noticed an autorickshaw bearing No.KA- 05-C-1505 about 30 feet away from him. He heard the conversations between the said persons and learnt that they are planning to make dacoity from the passers by. Hence, he secured his staff i.e., C.Ws.4 and 5 and also secured the panchas C.Ws.2 and 3 to the spot. Later, all of them have surrounded the said persons and apprehended the said two persons and also apprehended two persons, who are sitting in the auto with the help of his staff. P.W.1 has apprehended the accused No.1, who was in possession of club. C.W.4 has apprehended the accused No.2, who was in possession of knife. C.Ws.5 and 6 have apprehended the accused Nos.3 and 4, who were sitting in the said autorickshaw. He seized the said articles by drawing the mahazar and later, he came to the Police Station along with the accused Nos.1 to 4 along with seized articles and the autorickshaw and submitted his report to C.W.7.
7 S.C.No.373/201511. On the strength of the report of the P.W.1, C.W.7 has registered the crime in their Police Station Crime No.712/2014 against the accused Nos.1 to 4 for the offences punishable under Sections 399 and 402 of IPC and sent the F.I.R., to the court and also to his superiors.
12. The P.W.1 has admitted in the cross-examination that, he has not mentioned the registration number of the Hoysala vehicle namely KA-41/G-1342 in Ex.P.1 and P.2. He has further admitted that, he reached the spot at 5.10 a.m. He has categorically admitted that, it was very dark at the spot if that is so, how the P.W.1 has identified the said persons in the said darkness and moreover, the informant has not disclosed the features of the said persons. The P.W.1 has stated that, C.W.5 has written the Ex.P.2 as per the dictation of P.W.1. But, there is no mention in Ex.P.2 that, C.W.5 is the scribe of Ex.P.2. According to the P.W.2, the mahazar Ex.P.2 was drawn between 5.30 a.m. and 6.30 a.m. but, there is no whisper in Ex.P.2 it was drawn under the light of some vehicle or street light etc. The P.W.1 has categorically admitted that, at about 5.30 a.m. it was not clearly visible. Therefore the sufficient light is required to draw the Ex.P.2 but, the Ex.P.2 is totally silent about the availability of light under which the Ex.P.2 was drawn.
13. There is a discrepancy in the contents of Ex.P.1 and P.2 and the evidence of P.W.1. The Ex.P.1 report of the 8 S.C.No.373/2015 P.W.1 discloses that, on 09.12.2015, at about 5.00 a.m. he along with DPC 1734 were on patrolling duty in Hoysala 124 and they received credible information when they were at Harinagar. Therefore, he informed his staff i.e., H.C.2094, DPC 1032, who were on patrolling duty in Hoysala 122 and asked them to come near Kothanur bus stand. They have left the Kothanur bus stand at about 5.15 a.m. and reached the spot at 5.25 a.m. in one of the Hoysala Vehicle. He observed by hiding at the spot that, a person was holding club and another person was holding knife and also noticed an auto stationed nearby them. But, the P.W.1 has stated that, when he was on patrolling duty in Hoysala 43 vehicle near Royal Lake Front Layout at about 5.00 a.m., he heard the voice of 2 persons in the dark and noticed the auto bearing registration No.KA- 05/C-1505. Therefore, I am of the considered view that, the P.W.1's evidence is not above board and trust worthy to base the conviction against the accused as he has not at all whispered the above contents of Ex.P.1 and P.2 i.e., with respect of receipt of credible information and securing of panchas and his staff at Kothanur bus stand. The P.W.1 has stated that, he has apprehended the accused No.1, he was holding a club and C.W.4 apprehended the accused No.2, he was holding knife and after thorough search of the said auto rickshaw, they found that, there were 3 clubs inside the said auto. But, he has not whispered about the presence of iron rod which was alleged to have recovered 9 S.C.No.373/2015 from the said auto itself as per the contents of Ex.P.1 and P.2.
14. The P.W.2 is H.C. of Subramanyapura police, who has deposed about the registration of the crime on the strength of the complaint lodged by the self report submitted by the P.W.1 and sent F.I.R. and handed over the further investigation to P.W.3. The P.W.3 has deposed about the investigation of the crime and laying the charge sheet. The evidence of P.Ws.2 and 3 is pertaining to investigation. Therefore, it is not helpful for the prosecution to base the conviction relying on the evidence of P.Ws.2 and 3.
15. This court has issued summons to the independent panchas but, they were not secured, but report discloses that, they have left the address. Hence, they were dropped. The P.W.1 is a police official, his evidence is not corroborated by any independent panchas hence, it is not safe to base the conviction. The prosecution has miserably failed to bring home the guilt against the accused Nos.1 to 4 beyond all reasonable doubt as there is no corroboration to the evidence of P.W.1 with independent prosecution witnesses and hence, it is not safe to base the conviction on the evidence of P.Ws.1 to 3. Hence, the accused Nos.1 to 4 are entitled for acquittal on benefit of doubt. Accordingly, I answer the Point No.1 in the Negative.
10 S.C.No.373/201516. POINT No.2: In view of my finding on Point No.1 as above, my finding on this point is as per the following;
ORDER Acting under Section 235 Cr.P.C., accused Nos.1 to 4 are acquitted for the offences punishable under Sections 399 and 402 of IPC. Their bail bonds and surety bonds stand cancelled.
M.Os.1 to 5 shall be retained till disposal of the case registered against the split-up accused No.5.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 2nd day of September, 2016) (CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 Kempegowda
P.W.2 Muniraju
P.W.3 Manjunath
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Report of P.W.1
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of P.W.2
Ex.P.2 Mahazar
Ex.P.2(a) Signature of P.W.1
Ex.P.3 Photo of Autorickshaw
11 S.C.No.373/2015
Ex.P.4 F.I.R.
Ex.P.4(a) Signature of P.W.2
Ex.P.5 Property Form
Ex.P.5(a) Signature of P.W.2
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
M.Os.1 to 3 Clubs M.O.4 Iron Rod M.O.5 Knife
4. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED :
- NIL -
(CHANDRASHEKHAR MARGOOR) LXVII Addl.City Civil and Sessions Judge, BENGALURU.