Bangalore District Court
The State Of Karnataka vs A-1 Nithin Kumar @ Nithin - Split Up on 21 July, 2022
KABC010102492017
IN THE COURT OF THE LX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.61)
Dated this the 21st day of July, 2022
:PRESENT :
Sri Narashimsa.M.V., B.Com, LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No. 558/2017
COMPLAINANT:- The State of Karnataka,
By Victoria Hospital Police Station,
Bengaluru.
(By Public Prosecutor)
Vs
ACCUSED:- A-1 Nithin Kumar @ Nithin - SPLIT UP
A-2 Afroz @ Nayi @ Kumar @ Minuku
S/o Muneer Pasha @ Ramegowda,
Harechalli Village, Beluru Taluk,
Hassan District.
Date of offence 29.01.2013
Date of report of offence 05.07.2013
Name of the complainant Syed Athulla
Date of commencement of 06.02.2021
2 S.C.No.558/2017
recording of evidence
Date of closing of evidence 23.02.2022
Offences complained of Sec. 394 and 397 of IPC
Opinion of the Judge Accused No.2 found not guilty
State represented by Learned Public Prosecutor
Accused defended by By Sri T. Shivappa, Advocate for
accused No.2.
JUDGMENT
Criminal law was set into motion on the basis of first information lodged by Syed Athaulla. First informant has stated that he is owner of Tata Indica car bearing KA-04-ME-9322 , said car is attached to Lucky Travels, which is in turn listed in Just Dial. Lucky Travels gets leads (bookings) from Just dial.
2. On 29.01.2013, a person by name Satish from mobile No. 8105752411 called just dial 080 2333333, asking for Taxi/Car for hire. Mobile Number of Lucky travels is 9731677877, to which message was sent by just dial. Lucky travels called Satish, enquired as to from which place to which place was the proposed journey. Satish replied as from Victoria Hospital one patient and two people are to be dropped to Channaraya pattana. At 8.30 p.m Lucky travels from their phone No.9731677877 and 8884130599 called to first informants mobile number 9141729002 and gave details of the proposed journey. 3 S.C.No.558/2017
3. First informant reached Victoria hospital at 9.30 P.M. one patient was brought by two people , patient was made to sit in front seat of car, two people sat in back seat. Persons sitting in the back seat told that their mother is in Jalahalli she has to be picked up. First informant went to petrol bunk, filled up fuel , passengers did not pay, they said that they will pay at Jalahalli. In first information it is stated that while driving towards jalahalli the passengers told that their house will be nearer if Magadi route is taken. Pasengers took him to secluded places near Sunkadkatte. Thereafter near Mallasandra asked first informant to stop vehicle for passing urine, thereafter the journey continued once again near Mallasandr, passengers asked first informatn to stop the car first informant questioned them as to why, then the passengers took out a knife and kept it knife on his neck, first informant stopped the car, he was asked to sit in back seat, the patient sitting in in front seat started driving the car. Passengers sitting behind took his two mobile phones and Rs 1000/- cash. They threatened to kill him, made him to remove his pants, with it tied his hands, closed his face with T-shirt, made him to sleep in back seat, threatened that he should not raise his voice, or else will be killed, after long time in a forest like place, they pushed him out of the car. First informant by his hands removed the T-shirt put to his face, 4 S.C.No.558/2017 later untied his hands, he could not recognise the place, he walked for some time and reached a place called Sidda Nayakara Palya.
4. On moving further, first informant saw that a lorry was parked, a person was sleeping in it, first informant revealed the incident to him, asked him to give mobile phone to make a call, from it called his friend Nadeem's mobile number 9916246249 and asked him to call back immediately. At about 1.00 a.m. Nadeem called back, first informant explained to him the incident. Person who was sleeping in lorry told the exact location.
5. Nadeem and two others came in a car at 4.30 a.m. from there went to Tavarakere P.S., PSI told that place of incident does not fall in their jurisdiction, asked first informant to go to Madayanakanahalli P.S., PSI of Madanayakanahalli came in Jeep inspected the spot and told that first information should be lodged in Kalasipalya P.S. . First informant reached Kalasipalya P.S, officlas there asked him to go to Victoria P.S, from there taken to ACP-Chamrajpet, after enquiry with ASI-Wilson Vademani, first informant met DY.S.P. and as instructed informed to Circle Inspector and filed complaint in Huliyur Durga P.S. which was registered as Crime No. 12/2013.
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6. After receipt of first information Huliyur Durga Police commenced investigation, panchanama of the spot where accused persons took over the car from first informant, spot where first informant was pushed out of the car, panchanama of the spot from which accused persons boarded the car at Victoria hospital were conducted on 1.2.2013. I.O. gave requisition to Resident Medical Officer, Victoria hospital to furnish the particulars of patients who were discharged on 29.01.2013.
7. On 5.2.2013 Kumbalgodu Police found that Indica car bearing No. KA-04-MV-9322 was abandoned near Swamy Narayana Gurukul School. Localites informed that the said car was lying unattended since few days, hence Kumbalgodu Police seized the car. On 11.3.2013 Kengeri Gate Police apprehended five people as they had assembled near Forest Layout and had made preparation to commit dacoity. Those five people gave voluntary statement that they had committed various offences including the one reported by first informant in Huliyur Durga police Crime No. 12/2013.
8. First informant was called to Kumbalgodu Police Station, first informant identified accused No.1 to 3 in this case as the persons who had robbed him of the Car, mobile and cash on 29.1.2013. On the point of jurisdiction Huliyur Durga police Crime No. 12/2013 was transferred to 6 S.C.No.558/2017 Victoria hospital P.S., Bangalore and registered as Crime No 17/2013. Further investigation was conducted by Victoria Hospital Police, statement of witnesses was recorded. After completion of investigation since there was a prima-facie case against accused No.1 to 3 charge sheet came to be filed on 25.9.2013. Learned Magistrate took cognizance of the offence punishable under Sec. 394 of IPC, CC 15635/2013 was registered.
9. Before learned Magistrate bail applications filed by accused No.1 and 3 were allowed, they were enlarged on bail. During committal proceedings, learned Magistrate observed that accused No.1 to 3 had used deadly weapons to commit the crime, as such cognizance of the offence punishable under Sec. 397 of IPC was taken. Charge sheet and its annexures were served to accused in compliance of Sec.207 of Cr.P.C. Before the learned Magistrate accused No.3 remained absconding, accused No.1 was in custody in other case. Accused No.1 was being produced under body warrant, case against accused No.3 was split up and registered as CC 11471/2017. Vide orders dated 6.4.2017 learned Magistrate committed the case to the court of Hon'ble Prl. City Civil and Sessions Judge, this case is assigned to this Court for disposal in accordance with law.
7 S.C.No.558/2017
10. Before this Court bail application filed by accused No.1 was allowed, thereafter accused No.1 remained absent, bail bond of accused No.1 was forfeited, warrant for attachment of salary of surety of accused No.1, was issued, it was reported that surety of accused No.1 is dead. Subsequently case against accused No.1 was split up.
11. Charges came to be framed against accused No.2 on 14.9.2018, for the offence punishable under Section 394 of IPC. Subsequently, on 20.3.2019 altered charge came to be framed for the offence punishable under Section 397 of IPC. Accused No.2 pleaded not guilty, claimed to be tried.
12. Prosecution proposed to examine 19 witnesses, out of which 11 witnesses are examined as P.W.1 to 11, Ex.P.1 to P.16 are marked, M.O.1 and 2 are admitted. Proclamation was issued against C.W.-2,4,5 and 6 and they have been dropped as not secured. C.W-7 to 10 have been given up by prosecution. Incriminating evidence that had appeared against the accused was put to him as required under Sec. 313 of Cr.P.C., he denied the incriminating evidence that had appeared against him, accused has not led defence evidence nor has filed any written statement.
13. Heard the learned PP and the learned Advocate for accused No.2.
8 S.C.No.558/2017
14. The points that arise for my consideration are as under:-
1) Whether the prosecution beyond all reasonable doubt proves that on 29.1.2013 at 8.30 p.m. Lucky Travels of Bangalore called CW-1 Syed Ataullah Khan over phone and informed him that from Victoria hospital to Channarayanapattana a patient and his two attenders are to be taken in a car, thus CW-1 took his Tata Indica car bearing No. KA-04-ME-9322 to Victoria hospital at 9.05 p.m., there accused No.1 to 3 got into the Car as patient and his attenders, on the way told CW-1, that their mother is to be picked up from Jalahalli, if Magadi route is taken it would be nearer, on the way near Mallasandra, near a temple asked CW-1 to stop the Car to answer nature call, then CW-1 stopped the Car, at that time accused No.2, with accused No.1 and 3 placed a knife on the neck of CW-1, robbed him of his two mobile phones, cash Rs 1,000/-, tied hands of CW-
1, covered his face, took CW-1 in the car, near Siddanayakana Kere Palya, situate within the limits of Huliyur Durga Police Station, pushed him out of the car, thereby committed an offence punishable under Sec. 397 of IPC ?
2) What order ?
15. My answer to the above points are as under:-
Point No.1 :- In the Negative Point No.2 :- As per final order for the following:-
REASONS
16. Point No.1:- Prosecution has examined C.W.14 A.H.Ramesh, HC of Kumbalagodu Police Station as P.W.1. He has deposed that near Swamy Narayan Gurukula School himself and his colleague found an 9 S.C.No.558/2017 abandoned Indica car bearing No.KA-04-ME-9322. He has deposed that he conducted panchanama in the presence of C.W.2 and 3, registered Crl.Mis. No. 65/2013 and seized the said car for the purpose of handing it over to its owner.
17. Victim/first informant is examined as P.W.1. First informant has deposed that on 1.2.2013 he gave first information to Huliyur Durga P.S. On seeing accused No.2 before Court he identified him and deposed that accused took his car on hire for going to Channarayapattana, along with accused No.2 one person claiming himself to be patient and another claiming to be his attender, totally three persons were in the Car, on the way accused No.1 to 3 asked first informant to stop car for answering nature call. When the car was near Madanayakanahalli, accused No.2 told that they will go to his mother's home to collect money, two persons sitting in back seat of brandished a knife, gagged the mouth of first informant dragged him to the back seat and the person who was projected as a patient started driving the Car, accused No.1 to 3 used abusive language, the car was driven for about two hours and in a forest first informant was pushed out of the car, accused No.1 and 3 fled away with the Car. P.W.-1 has further deposed that he received booking through Lucky Travels. P.W.1 has deposed that from the place where he was 10 S.C.No.558/2017 thrown out of the car, he walked for a distance, reached a village where Pooja was being performed, with the help of people there he reached Huliyur Durga Police Station and lodged complaint, after one week his car was found in Kumbalgodu Police station, photo of the said car is not marked as it had been destroyed by Police.
18. In cross-examination P.W.1 has accepted that he can read and write Kannada, he has deposed that when he went to Police Station to lodge complaint Madan Pasha was with him. It is suggested to him that whatever he has stated in his chief-examination is false which is denied by him. It is suggested that due to darkness at the time of incident, he cannot identify any of the accused persons which is denied by him. It is suggested that whatever is written in first information at Ex.P.2 is completely false. It is suggested that as instructed by Police he is deposing falsely which is denied by him.
19. Prosecution has examined one of the witness to the panchanama C.W.3 as P.W.3. He has deposed that about 6 to 7 years back he along with C.W.4 had gone to Huliyur Durga Police Station as police had called C.W.4, P.W.2 was sitting under a tree there, had suffered injuries to his hand. C.W.4 informed him that some people had assaulted P.W.2 and had taken his Car. It is deposed by P.W.3 that he was present when first 11 S.C.No.558/2017 informant lodged the complaint. He has deposed before Court that no panchanama was conducted at Victoria hospital in his presence nor at the spot on the way to Huliyur Durga. Learned PP treated him as hostile and the circumstances under which panchanama came to be conducted is explained to him, It is suggested to him that panchnama was conducted in his presence at the spots shown by P.W.-2 and after going through the same, he has affixed his signatures on it which is denied by him.
20. P.W.5 is the Sub Inspector of Kengeri P.S. during the year 2011 to 2013. He has deposed that accused No.1 to 3 in this case and two others were taken into custody when they were near Forest Layout, they had armed themselves with deadly weapons and were making preparations to commit dacoity. Even P.W.10 and 11 who are police officials of Kengeri Police Station have deposed to that effect. P.W.5 has deposed that confession statement given by accused No.1 to 3. was recorded by him and A 1 to 3 in this case disclosed about commission of the offence.
21. P.W.9 is another Police Constable who has spoken in tune with P.W.1 about seizure of the Car.
22. P.W.8 is the Police Inspector of Victoria Hospital Police Station from 10.4.2013 to 18.5.2015, he has deposed that he has recorded further 12 S.C.No.558/2017 statement of P.W.1 and after collecting evidence against accused No.1 to 3 filed charge sheet.
23. Out of the witnesses examined before Court P.W.2 and 3 are private witnesses, all other witnesses are police officials. P.W.3 panch witness has turned hostile. Prosecution could not secure C.W-2,4,5 and 6, proclamation was issued against them and they are dropped as not secured. It is pertinent to note here that as per the first information P.W.-2 has made a telephone call to C.W.-2, on the date of incident by taking mobile phone of the person found in sleeping in the Lorry. Therafter C.W- 2 and other s came in car. C.W.-2 would have been a crucial linl, but he has not been secured to depose before court.
24. P.W.2/Victim has identified accused No.2 before Court and has stated that accused No.1 to 3 have committed act alleged by him in the first information. It is pertinent to note that the prosecution has not established the fact that P.W.2 was virtually made to reach Victoria hospital on 29.1.2013 by accused No.1 to 3 or any persons acting on their behalf. Evidence of P.W.2 though describes about several phone calls between Sathish, Just dial, Lucky Travels and First informant, call logs, CDR, location history of mobile phones of P.W.2 (victim) Sathish is not before the Court. It is pertinent to note that in first information P.W.2 has stated that 13 S.C.No.558/2017 his hands were tied with a pant, his face was covered by a T-Shirt, but there is no mention of any kind of injuries on the body of P.W.2, even though he was pushed out from a Car, that too when his hands have been tied and face being covered.
25. Case of prosecution is that P.W.2 was the sole person who was present at the time of incident. Perusal of Ex.P.2 first information discloses that P.W.-2 is the owner of Car bearing No. KA-04-9322, P.W.2 was getting bookings through Lucky Travels which is listed in Just Dial as one of the service providers. In Ex.P.2 ,P.W.2 has stated that a person by name Satish from his mobile No. 8105752411 called just dial asking for a taxi, mobile number of Lucky Travels is 9731677877 and 8884130599. It is also stated by P.W.2 that at 8.30 P.M. he received information about booking from lucky travels on his mobile number 9141729002. In Ex.P.2 it is disclosed that two mobile of P.W.2 were robbed from him by accused No.1 to 3. P.W.2 has deposed that his phone numbers are 9035766171 and 9141729002.
26. Reading of Ex.P.2 discloses that there was communication between Sathish, Just dial, Lucky Travels and P.W.2 before the journey commenced from Victoria hospital. Call records of the aforesaid mobile numbers are not produced before this Court, Satish has not been cited as 14 S.C.No.558/2017 a witness nor he is one of the accused persons. P.W. 2 has deposed that person claiming to be a patient and his two attenders boarded his car at Victoria hospital. Whether Sathish was one of them is not stated by P.w.2. Whom did P.W.2 interact with before starting journey at Victoria hospital is not at all stated. It is pertinent to note that P.W.7 has deposed that on 02.02.2013 he visited Just Dial office and took CDR number and Tower location of the numbers from call was made to Just Dial. Curiously it has not been produced before this Court.
27. P.W.7 has deposed that he gave requisition to Resident Medical Officer, Victoria Hospital to furnish details of the persons who were discharged from hospital on 29.1.2013 as it would aid in investigation. Documents said to have been issued by RMO are not produced before this Court so as to establish the identity of the patient. Another striking feature is that Car No. KA-04-ME-9422 is a White board vehicle (Private Car) it is not permissible to use a white board vehicle for hire purposes. The owner of Lucky Travels is not at all cited as a witness, log book of the vehicle also is not produced before this Court.
28. Solitary witness to this case is P.W.2, substantial portion of the information stated by him in first information has been omitted in his chief- examination. What happened to two mobile phones of first informant, 15 S.C.No.558/2017 whether those mobiles were registered in the name of first informant subsequent to 29.1.2013 whether those two mobile numbers were in use or not can be ascertained only if call records are produced, prosecution has not placed them on record. Whether any reply was received from R.M.O. of Victoria Hospital to requisition given vide Ex.P.16 is not stated by any of the witnesses.
29. P.W.3 in his chief-examination deposed that P.W.2 had suffered injuries to his hand, but no wound certificate is marked in this case. Identification of accused No.2 before Court by P.W.2 itself cannot be considered as pointer of guilt of Accused No.2 Viewed from one angle evidence of P.W.2 appears to be a direct evidence. P.W.2 is a Driver by profession, possibility of he being tutored cannot be ruled out. Prosecution has failed to demonstrate and establish the circumstances which made P.W.2 to reach Victoria hospital with his car. None of the official witnesses have seen the act being committed, their evidence is post incident, relying upon their evidence is not proper. Further information to Kengeri Police Station about commission of the incident complained of by P.W.2, is as per the confession statement given by accused No.1 to 3. Such statement is inadmissible as it is self incriminating.
16 S.C.No.558/2017
30. Prosecution has failed to link up the circumstances to prove the guilt of accused No.2. Considering the omissions in the evidence of P.W.2 viz-a-viz the first information, evidence of P.W.2 is not reliable. As prosecution has failed to prove the case beyond all reasonable doubt, benefit of doubt should be given to accused, further there is lack of evidence as well. Considering the aforesaid aspects, I answer the above point No.1 in the Negative.
31. Point No.3:- In view of my findings on point No.1, I proceed to pass the following:-
ORDER Accused No.2 is acquitted u/s.235(1) of Cr.P.C., for the offence punishable under Sec. 397 of IPC.
Accused No.2 shall execute personal bond in compliance of Sec. 437A of Cr.P.C and provide his Aadhar card particulars, Case papers and properties shall be preserved for trial against split up accused person.
(Dictated to the Stenographer, transcribed and typed by him, revised by me and then pronounced by me in open court on this the 21st day of July, 2022).
(Narashimsa.M.V.) LX Addl.City Civil & Sessions Judge, Bengaluru.17 S.C.No.558/2017
ANNEXURES:
List of witnesses examined on behalf of the Prosecution :
PW1 Ramesh P.W2 Syed Athaulla PW3 Nazar Pasha PW4 Muniraju PW5 Mallikarjun PW6 H.R.Narayana PW7 Ranjan Kumar.D. PW8 C.S.Anand PW9 Ashok.R. PW10 Salbechand PW11 K.P.Satyanarayana
List of documents exhibited for the prosecution:
Ex.P.1 Mahazar Ex.P.2 Complaint Ex.P.3 & 4 Mahazars Ex.P.5 to 7 Statement of P.W.3 Ex.P.8 F.I.R. Ex.P.9 True copy of complaint Ex.P.10 F.I.R. Ex.P.11 DCP Officer letter Ex.P.12 Complaint Ex.P.13 F.I.R. Ex.P.14 & 15 Sketch Ex.P16 Appeal to Doctor
List of witnesses examined for the defence: Nil List of documents exhibited on behalf of defence:
Nil 18 S.C.No.558/2017 List of M.O. marked for the prosecution :
M.O.1 Green colour T-Shirt
M.O.2 Pant with shirt
LX Addl.City Civil & Sessions Judge,
Bengaluru.
19 S.C.No.558/2017