Bangalore District Court
State By Bharathinagar Police Station vs No. 2. Mohammed Thabrez @ Thabrez on 3 May, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 3rd day of May, 2019
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.509/2011
COMPLAINANT:- State by Bharathinagar Police Station,
Bengaluru.
-Vs-
ACCUSED No. 2. Mohammed Thabrez @ Thabrez,
S/o.Ameerjan,
Aged about 25 years,
R/at.No.92, 4th Cross,
Williams Town,
Bention Town,
J.C.Nagar,
Bengaluru.
5. Mohammed Imran @ Imran,
S/o.Late G.Abdul Rasheed,
Aged about 33 years,
R/at.No.112, 5th Cross,
Williams Town,
Bention Town,
J.C.Nagar,
Bengaluru.
2 S.C.No.509/2011
1. Date of commission of offence : 27.6.2010
2. Date of report of offence : 27.6.2010
3. Date of arrest of the Accused :
4. Name of the complainant : Sri. J. Hameed
5. Date of recording evidence : 20.1.2012
6. Date of closing evidence : 6.2.2018
7. Offences complained of : U/Sec.143, 147,148,307
R/w.149 of IPC.
8. Opinion of the Judge : Offence against Accused
No.2 and 5 is not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. Ranganatha. Advocate
JUDGMENT
The Bharathinagara police have filed charge sheet against the accused No.1 to 5 for the offences punishable U/s.143, 147, 148, 307 R/w.149 of I.P.C., in Cr.No.160/2010.
2. Brief facts of the prosecution case is as under; On 27.6.2010 at 7.00 p.m., due to earlier enimity accused No.1 to 5 formed an unlawful assembly armed with deadly weapons 3 S.C.No.509/2011 in order to murder Cw.1/J.Hameed and Cw.2/ J. Nizam assembled near Bamboo Bazar auto stand. There was a galata in between accused No.2 and Cw.1 and 2. On 26.6.2010 at 7.00 p.m., accused No.2 observed Cw.2 boarding auto rickshaw near Cols Park. Once again accused No.2 raised quarrel with Cw.2 abused and assaulted Cw.2 with hands thrown knife on Cw.2. Thereafter on 27.6.2010 at 7.00 p.m., accused No.1 to 6 picked quarrel with Cw.1 and 2 near Bamboo Bazaar auto stand. Accused No.2 abused in a filthy language. Accused No.1 to 6 surrounded Cw.1 and 2 dragged them inside the office of Corporation Ward. Accused No.1 assaulted Cw.1 on his left ear, cheek, head, right hand, nose, and on the left eye with a knife caused greivious bleeding injuries. Accused No.5/Imran and accused No.6/Saif assaulted on the left thigh, index finger, nose, right jaw, head and on two shoulders of Cw.2 with a knife and caused greivious bleeding injuries to him. Accused No.2 assaulted Cw.1 and 2 on their back and shoulders with bat. Accused No.3 assaulted on the back shoulder and on the hands of Cw.1 and 2 with wicket. Accused No.5/Mohammed Chan assaulted 4 S.C.No.509/2011 Cw.1 and 2 with hand, thereby attempted to kill Cw.1 and Cw.2. On the basis of the complaint registered by complainant, a case was registered against accused No.1 to 6 in Cr.No.160/2010 for the offence punishable U/s.143, 147, 148, 307 R/w.149 of I.P.C.
3. Investigating Officer proceeded to the spot and conducted spot panchanama, seized weapons used for commission of offence enquired and recorded the statements of the witnesses as per Section 161 of Cr.P.C. After receiving Wound Certificate from the Medical Officer, Investigating Officer submitted charge sheet to the jurisdictional magistrate.
4. Cognizance for the offences shown in the charge sheet was taken against the accused No.1 to 6 by the Learned Magistrate. During the course of investigation, accused No.6 absconded. Hence, criminal case against accused was registered in C.C.No.25355/2010 on the file of Addl.Metropolitan Magistrate, Bengaluru. Since offences alleged against accused are triable exclusively by the court of Sessions, this case is committed to the court of Sessions. After committal, this case is re-registered as S.C.No.509/2011. 5 S.C.No.509/2011
5. After hearing, on 8.7.2011 charge against accused No.1 to 5 framed, which they denied and claims to be tried. During the trial, accused No.1 reported to be dead. Despite issuance of N.B.W., accused No.3 and 4 not appeared before this court. hence, case against them is split up.
6. To prove the ingredients of the offences charge leveled against the accused No.2 and 5, prosecution examined 10 witnesses as Pw.1 to Pw.10 and got exhibited 15 documents at Ex.P.1 to Ex.P.15 and got identified 13 material objects at Mo.1 to 13. Portion of the statements of the witness got marked as Ex.D.1 and Ex.D.2.
7. On completion of the evidence of prosecution side, all incriminating evidence, available in the evidence of the prosecution were explained to the accused No.2 and 5 as required U/s.313 of Cr.P.C., and recorded their statements. Accused No.2 and 5 have not produced any documents, materials on their behalf. Further no defence evidence lead by the accused side. 6 S.C.No.509/2011
8. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused. Learned counsel for the accused filed memo with citation of judgments reported as under;
1. 2018 AIR SCW 3961.
2. 2018 (2) AKR 577.
3. 2018 (4) AKR 313.
4. 2018 (3) AKR 835.
5. 2018 (3) AKR 307.
9. Now, the points arising for determination are as follows:
1. Whether prosecution proves beyond reasonable doubt that, on 27.6.2010 at 7.00 p.m., accused No.2 and 5 along with other accused were the members of an unlawful assembly near Bamboo Bazar Auto Stand within the jurisdiction of Bharathinagar police station with a common object to murder Cw.1 /J.Hameed and Cw.2/J.Nizan thereby committed offence punishable U/s. 143 R/w.149 of I.P.C., as alleged in the charge sheet 7 S.C.No.509/2011
2. Whether prosecution proves beyond reasonable doubt that, on the above date, time and place accused No.2 and 5 along with other accused were the members of an unlawful assembly and in prosecution of common object to murder Cw.1/Hameed and Cw.2/Nizam committed rioting and thereby committed an offence punishable U/s.147 R/w.149 of I.P.C., as alleged in the charge sheet?
3. Whether prosecution proves beyond reasonable doubt that, on the above date, time and place accused No.2 and 5 along with other accused were the members of an unlawful assembly holding deadly weapons namely cricket bat, wicket, and knives in their hands with a common object to murder Cw.1/Hameed and Cw.2/Nizam and thereby committed an offence punishable U/s.148 R/w.149 of I.P.C., as alleged in the charge sheet?
4. Whether prosecution proves beyond reasonable doubt that, there was a galata in between accused No.2 and Cw.1 and 2. On 26.6.2010 at 7.00 p.m., accused No.2 observed Cw.2 boarding 8 S.C.No.509/2011 auto rickshaw near Cols Park. Once again accused No.2 raised quarrel with Cw.2 abused and assaulted Cw.2 with hands thrown knife on Cw.2. Thereafter on 27.6.2010 at 7.00 p.m., accused No.1 to 6 picked quarrel with Cw.1 and 2 near Bamboo Bazaar auto stand. Accused No.2 abused in a filthy language. Accused No.1 to 6 surrounded Cw.1 and 2 dragged them inside the office of Corporation Ward. Accused No.1 assaulted Cw.1 on his left ear, cheek, head, right hand, nose, and on the left eye with a knife caused greivious bleeding injuries. Accused No.5/Imran and accused No.6/Saif assaulted on the left thigh, index finger, nose, right jaw, head and on two shoulders of Cw.2 with a knife and caused greivious bleeding injuries to him.
Accused No.2 assaulted Cw.1 and 2 on their back and shoulders with bat. Accused No.3 assaulted on the back shoulder and on the hands of Cw.1 and 2 with wicket. Accused No.5/Mohammed Chan assaulted Cw.1 and 2 with hand, thereby attempted to kill Cw.1 and Cw.2 and thereby committed an offence punishable U/s.307 R/w.149 of I.P.C., as alleged in the charge sheet? 9 S.C.No.509/2011
5. To what Order ?
10. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
Point No.5 : As per final order
for the following:
REASONS
11. POINTS NO.1 TO 4:- These points are taken
together to avoid repeated discussions.
12. Pw.1/Cw.12/G.Narayanaswamy HC.No.2858 deposed with respect to securing the accused No.2 to 4, and produced them before the Investigating Officer.
13. Pw.2/Cw.6/Suleman panch witness for seizure panchanama not supported to the case of the prosecution.
14. Pw.3/Cw.15/Shankar CMO, Bowring Hospital deposed with respect to injuries found on the body of Cw.1 and Cw.2/Nizam. Further deposed with respect to treating them and issuing wound 10 S.C.No.509/2011 certificate as per Ex.P.3 and Ex.P.4. In the cross-examination it is admitted that, wounds shown in Ex.P.3 and 4 may happen when a person fell on the sharp object. Further, he deposed that, on the same day, accused No.1/Syed Nadim also treated by him with history of assault by Cw.1 and 2.
15. Pw.4/Cw.16/Basavaraju Retired Police Inspector, deposed tracing about the search for the accused persons.
16. Pw.5/Cw.17/Malathi deposed about examination of Mo.1 to 13, knives, clothes, bat, wickets. Further deposed that human bloodstain found on the said Mo.1 to 10. She identified those articles. In the cross-examination she denied the suggestion that, without examining any material she had issued opinion on the basis of the request made by the Investigating Officer.
17. Pw.6/Cw.3/Sameer who is shown as witness seen the incident deposed that, accused No.1 and others assaulted Cw.1 and
2. He admitted Cw.1 to 2 to the Bowring Hospital. He identified 5 accused before the court. In the cross-examination this witness admitted that, place of incident is a field, surrounded by compound. 11 S.C.No.509/2011 Further he admitted that, persons standing out side of the compound cannot see what is going on inside the ground. There was darkness at 7.00 p.m.
18. Pw.7/Cw.14/Cheluvaraju police constable deposed about securing the accused No.2 to 4 and produced before the Investigating Officer.
19. Pw.8/Cw.8/Nizam deposed about the incident. Further deposed that, accused No.1, 2 and 5 assaulted on Cw.1 by using knife on the head, left eye, right ear, right stomach and two shoulders by knife. Accused assaulted with wickets also. He further deposed with respect to drawing spot panchanama as per Ex.P.2.
20. Pw.9/Cw.5/Syed Hajeem eyewitness to the incident deposed with respect to assault caused by accused No.1 against Cw.1 and 7. He identified Mo.1 to 3. This witness denying involvement of accused No.2 and 5 who were present before the court in the alleged incient. In the cross-examination after treating 12 S.C.No.509/2011 witness hostile, he has not deposed anything against accused No.2 and 5.
21. Pw.10/Cw.18/K.R.Ganesh deposed with respect to investigation conducted by him. He deposed about registration of F.I.R., as per Ex.P.9 and on the baiss of complaint as per Ex.P.8. He deposed about conducting spot panchanama as per Ex.P.2, arrest of the accused No.1, recording his voluntary statement as per Ex.P.10, seizing Mo.1/knife on the basis of information given by accused No.1 under the cover of Ex.P.11/seizure panchanama. Further, he deposed about seizure of bloodstained clothes of the complainant under the cover the Ex.P.12/panchanama. Further deposed about arrest of the accused No.2 to 4, interrogating and recording their voluntary statements as per Ex.P.3 to 5, seizure of Mo.10 to 13 bat, wicket under the cover of Ex.P.12/panchanama. Further he deposed about collecting wound certificate from Bowring Hospital and recording statements of Cw.8, 6, 4, 9, 7, 10 and 11. Further he deposed about sending seized articles to FSL, Madivala for 13 S.C.No.509/2011 examination. He identified accused No.2 and 5 who are present before the court.
22. In the cross-examination he admitted that, accused No.1 is dead. He cannot say the description of accused No.3 and 4. There is no document to show that, seized articles were sent to FSL., Madivala. He admitted that, knife like Mo.1 is available everywhere. Further admitted that, Cw.1 had not informed about the bloodstain on his cloths. Further admitted that, he had not mentioned the bloodstain found on the spot, bloodstain on two knives, cricket wicket. He admitted portion of statement of Cw.6 as per Ex.D.1 stating that, Thabrez assaulted Nizam by using cricket bat.
23. Pw.8 in the cross-examination admitted that, as per Ex.D.2 statement stating that Thabrez assaulted his brother by using cricket bat on head, hand and legs.
24. Even though complainant injured deposed about the incident was unable to explain specific overt act committed by the 14 S.C.No.509/2011 accused No.2 and 5. Accused No.1 is dead against whom allegation of assault against Cw.1 and 2 are made. Eye witnesses to the incident not deposed against this accused No.2 and 5, who is facing trial in this case.
25. Injuries described by the complainant injured are not corroborating with the injuries explained in the wound certificates/Ex.P.3 and 4 as per deposition of medical officer Pw.3.
26. Weapons used for commission of the offence is different from the weapons explained in the complaint and deposed before the court. In the statements Ex.D.1 and 2, it is stated that accused used cricket bat to assault. In the evidence, witnesses deposed that, they used hockey bat to assault. These discrepancies create doubt on the case of the prosecution leveled against accused No.2 and , whether they were actually involved in the commission of the offences along with accused No.1 and other accused. Pw.9 an eye witness to the incident deposed that accused No.2 and 5 were not assaulted Cw.1 and 2. Further there are multiple incidents 15 S.C.No.509/2011 of galata taken place between the complainant and the accused. Delay in lodging the complaint not satisfactorily explained. Role played by accused No.2 and 5 is not established clearly by the witness with corroboration.
27. Prosecution failed to prove beyond all reasonable doubt that, on 27.6.2010 at 7.00 p.m., due to earlier enimity accused No.1 to 5 formed an unlawful assembly armed with deadly weapons in order to murder Cw.1/J.Hameed and Cw.2/ J. Nizam assembled near Bamboo Bazar auto stand. There was a galata in between accused No.2 and Cw.1 and 2. On 26.6.2010 at 7.00 p.m., accused No.2 observed Cw.2 boarding auto rickshaw near Cols Park. Once again accused No.2 raised quarrel with Cw.2 abused and assaulted Cw.2 with hands thrown knife on Cw.2. Thereafter on 27.6.2010 at 7.00 p.m., accused No.1 to 6 picked quarrel with Cw.1 and 2 near Bamboo Bazaar auto stand. Accused No.2 abused in a filthy language. Accused No.1 to 6 surrounded Cw.1 and 2 dragged them inside the office of Corporation Ward. Accused No.1 assaulted Cw.1 on his left ear, cheek, head, right hand, nose, and on the left eye 16 S.C.No.509/2011 with a knife caused greivious bleeding injuries. Accused No.5/Imran and accused No.6/Saif assaulted on the left thigh, index finger, nose, right jaw, head and on two shoulders of Cw.2 with a knife and caused greivious bleeding injuries to him. Accused No.2 assaulted Cw.1 and 2 on their back and shoulders with bat. Accused No.3 assaulted on the back shoulder and on the hands of Cw.1 and 2 with wicket. Accused No.5/Mohammed Chan assaulted Cw.1 and 2 with hand, thereby attempted to kill Cw.1 and Cw.2 and thereby committed offences punishable U/s.143, 147, 148, 307 R/w.149 of I.P.C. Accordingly, points No.1 to 4 are answered in the Negative.
28. POINT NO.5: In view of the above findings on points No.1 to 4, accused No.2 and 5 are entitled for acquittal. Hence, the following order is made;
ORDER Invoking provisions U/s. 235(1) of Cr.P.C., accused No.2 and 5 are hereby acquitted for the offences punishable U/s.143, 147, 148, 307 R/w.149 of I.P.C.
17 S.C.No.509/2011
Their bail bonds and surety bonds shall stands cancelled.
Accused No.2 and 5 are herby directed to execute fresh bail bonds of Rs.1,00,000/- each as required U/s.437-A of Cr.P.C., and same shall be inforce for a period of six months from this day.
Mo.4 to 9 are worthless, hence, ordered to be destroyed, after appeal period is over.
Mo.1 to 3 and Mo.10 to 13 are having some worth, hence, ordered to be confiscated to the State, after appeal period is over.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C. (Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 3rd day of May 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
18 S.C.No.509/2011ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 G.Narayana Swamy Pw.2 Suleman Pw.3 Shankar Pw.4 Basavaraju Pw.5 Malathi Pw.6 Sameer Pw.7 Cheluvaraju Pw.8 Nijam Pw.9 Syed Hajim Pw.10 K.R.Ganesh II. For Defence:- - Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Report
Ex.P.1(a) Signature of Pw.1
Ex.P.2 Panchanama
Ex.P.2(a) Signature of Pw.2
Ex.P.3 Wound certificate
Ex.P.3(a) Signature
Ex.P.4 Wound Certificate
Ex.P.4(a) Signature
Ex.P.5 F.S.L.Report
Ex.P.5(a) Signature of Pw.5
19 S.C.No.509/2011
Ex.P.6 F.S.L.Seal
Ex.P.6(a) Signature of Pw.6
Ex.P.7 Statement of Pw.9
Ex.P.8 Complaint
Ex.P.8(a) Signature
Ex.P.9 F.I.R.,
Ex.P.9(a) Signature of Pw.10
Ex.P.10 Statement accused No.1
Ex.P.11 Panchanama
Ex.P.11(a) Signature of Pw.10
Ex.P.12 Panchanama
Ex.P.12(a) Signature of Pw.10
Ex.P.13 Statement of accused No.2
Ex.P.14 Statement of accused No.3
Ex.P.15 Statement of accused No.4
For Defence side:-
Ex.D.1 Portion of statement of Pw.6
Ex.D.2 Portion of statement of Pw.10
IV. List of material objects marked:-
Mo.1 to Mo.3 3 knives
Mo.4 Shirt
Mo.5 Shirt
Mo.6 & Mo.7 2 Banians
Mo.8 & Mo.9 2 Pants
Mo.10 Bat
Mo.11 to 13 3 wickets
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY