Bangalore District Court
State By; vs In 1. Aslam Pasha on 24 December, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 24th day of December 2016
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1121/2016
AND
SESSION CASE No.1335/2016
COMPLAINANT : State By;
D.J.Halli Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED IN 1. Aslam Pasha
S.C.1335/16: S/o Mehaboob Pasha,
Aged about 33 years,
Residing at No.47,
1st Main Road, Marappa Block,
J.C.Nagara, Bengaluru - 06.
ACCUSED IN 2. Mohammed Iliyas
S.C.1335/16: S/o Mohammed Iqbal,
Aged about 32 years,
Residing at No.36, 1st Cross,
Armstrong Road, Byduvadi,
Bharathi Nagara, Bengaluru.
ACCUSED IN 3. Sujith Basha
S.C.1335/16: S/o Syed Sardar,
Aged about 36 years,
Residing No.08, 11th Cross,
2 S.C.1121/2016 &
S.C.1335/2016
Arpath Nagara, Padarayanapura,
Mysore Road, Bengaluru.
ACCUSED IN 4. Jabeer Khan
S.C.1121/16 S/o Taheer Khan,
Aged about 23 years,
Residing at No.31,
Darga Compound, Jayamahal,
J.C.Nagara, Bengaluru.
ACCUSED IN 5. Abdul Mohin Khan
S.C.1335/16: S/o Rehaman Khan,
Aged about 35 years,
Residing at No.193,
'B' Street, 7th Cross,
Siddiq Galli, Cols Park,
Bharathi Nagara, Bengaluru.
ACCUSED IN 6. Imran Beig @ Javeed
S.C.1335/16: S/o Azam Beig,
Aged about 36 years,
Residing at No.416,
4th Cross, Kengeri Upanagara,
Sun City, Bengaluru.
(By Sri.V.R., Advocate)
1. Date of commission of offence 27-01-2016
2. Date of report of occurrence 27-01-2016
3. Date of commencement of evidence 22-11-2016
4. Date of closing of evidence 02-12-2016
5. Name of the complainant Sri.H.D.Kulakarni
6. Offences complained of Sec.399, 402 I.P.C.
3 S.C.1121/2016 &
S.C.1335/2016
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
COMMON JUDGMENT
These cases are committed by the XI Chief Metropolitan
Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil
and Sessions Court, Bangalore on the ground that offences
punishable under Sec.399, 402 of IPC are exclusively triable
by the court of Sessions.
2. The Police Inspector of D.J.Halli Police Station has
filed charge-sheet against accused for the offences under
Sec.399, 402 I.P.C. arising out of D.J.Halli Police Station in
Crime No.27/2016.
3. The brief facts of the prosecution case is as under:
(a) It is the case of the Prosecution that, CW.1 who is
the Police Inspector of D.J.Halli Police Station on 27-01-2016
at about 08.00 p.m. when patrolling within the limits of his
Police Station at Shampura along with his officials CW.4 to 9,
received a credible information stating that at Shampura
Railway Gate open space 5-6 persons assembled armed with
4 S.C.1121/2016 &
S.C.1335/2016
deadly weapons and making preparation to commit dacoity of
the commuters. Thereafter, CW.1 called CW.2 and 3-Panchas
and informed the information received by him to them and
requested them for co-operating as Panchas. Thereafter,
CW.1 along with his officials and Panchas came near the spot
and watched the spot, on the spot 5-6 persons assembled
armed with deadly weapons and talking among themselves
regarding committing of dacoity of the commuters, CW.1 has
confirmed the information as correct thereafter CW.1 and his
officials have conducted raid in presence of Panchas and
catch-hold 6 persons, they were possessing deadly weapons
i.e., Long, Sword, Clubs and chilly powder pockets. On
enquiry the said persons told that they have assembled there
for committing dacoity of the commuters, they told the names
and address, thereafter CW.1 has drawn the Mahazar and
seized the deadly weapons. Thereafter CW.1 and his officials
brought the said persons along with the properties to the
D.J.Halli Police Station, prepared a Report and produced the
Report, accused persons and properties seized before CW.10.
On 08-02-2016, CW.1 has taken the further investigation from
5 S.C.1121/2016 &
S.C.1335/2016
CW.10 and as the investigation is completed filed the charge-
sheet.
(b) CW.10 who is the Police Inspector of D.J.Halli
Police Station on 27-01-2016 at 10.30 p.m. when in the Police
Station, CW.1 and his officials came to the Police Station and
produced accused No.1 to 6 and properties seized from them,
CW.1 has also given Report. CW.10 on the basis of the Report
registered the case in Crime No.27/2016 and submitted the
FIR to the court. CW.10 has arrested accused No.1 to 6,
enquired them and recorded their voluntary statements.
CW.10 has subjected the properties under P.F.11/2016, on the
same day CW.10 has recorded the statements of CW.2 to 9,
thereafter CW.10 has handed-over the further investigation to
CW.1.
4. After filing the charge-sheet by the Investigating
Officer, XI Addl.Chief Metropolitan Magistrate Court, Bengaluru
has taken cognizance and registered the case in
C.C.52501/2016 and secured the presence of accused.
Thereafter, XI Addl. City Metropolitan Magistrate Court,
Bengaluru has furnished charge-sheet copies to accused as
6 S.C.1121/2016 &
S.C.1335/2016
contemplated under Sec.207 of Cr.P.C. and committed the
case against accused before the Hon'ble Prl. City Civil and
Sessions Court, Bangalore and that was registered as
S.C.1121/2016 and made over to this court as the offences
alleged against the accused under Sec.399, 402 of I.P.C. are
exclusively triable by the Sessions Court.
5. After receipt of the papers this court has secured
presence of accused No.4, even though NBW's came to be
issued on accused No.1 to 3, 5 and 6 on several occasions, the
same returned unexecuted and as delay is causing due to non-
execution of NBW's, case against accused No.1 to 3, 5 and 6
came to be splitted and office is directed to call separate
charge-sheet against accused No.1 to 3, 5 and 6 and register
separate case against them.
6. As per the order of this court, the office has called
separate charge-sheet against accused No.1 to 3, 5 and 6 from
the Investigating Officer and registered separate case in
S.C.1335/2016 and made over the same before this court.
After receipt of the records, this court has secured the
presence of accused No.1 to 3, 5 and 6. As S.C.1121/2016
7 S.C.1121/2016 &
S.C.1335/2016
and S.C.1335/2016 are arising out of D.J.Halli Police Station
Crime No.272/16, both cases are clubbed and it is ordered that
common evidence is to be recorded in S.C.1121/2016 and
dispose off both the cases by this common judgment.
7. After securance of the accused in both the cases,
heard the counsel for accused and learned Public Prosecutor
for state 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 I.P.C. and read-over to the accused in the
open court and accused pleaded not guilty and claim to be
tried. Thereafter, Prosecution is called upon to prove the guilt
of the accused by examining the Prosecution witnesses.
8. Prosecution in order to prove the guilt of the
accused beyond all reasonable doubt in all examined 2
witnesses as PW.1, PW.2 and got marked 4 documents as per
Ex.P1 to 4 and marked the 6 material objects as MO.1 to 6.
Thereafter, prosecution has closed its side. Accused are
examined under Sec.313 Cr.P.C. to enable them to explain the
incriminating circumstances appearing against them in the
prosecution evidence. Accused denied the statement in toto
8 S.C.1121/2016 &
S.C.1335/2016
and further stated that accused have no defence evidence and
they have nothing to say, thereafter the case is posted for
arguments.
9. Heard the arguments advanced by the learned
counsel for the accused and learned Public Prosecutor for state
in length.
10. The points that arise for my determination are:
1) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 6 on 27-
01-2016 at 8.00 p.m., within the limits of
D.J.Halli Police Station Main Road near Railway
gate open space, formed unlawful assembly by
holding deadly weapons and making preparation
to commit dacoity of the commuters and thereby
accused have committed the offence under
Sec.399 of IPC?
2) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 6, on the
above said date, time and place, assembled
armed with deadly weapons in order to commit
dacoity and thereby committed the offence
punishable under Sec.402 of IPC?
9 S.C.1121/2016 &
S.C.1335/2016
3) What order?
11. My findings on the above points are as follows:
Point No.1 & 2 : In the Negative;
Point No.3 : As per final order
For the following;
REASONS
12. POINT No.1 AND 2: The above points are
connected, hence they are taken up together for discussion
together.
13. It is the case of the prosecution that the accused
have committed the offences punishable under Sec.399, 402 of
I.P.C. and in order to prove the guilt of the accused the
prosecution in all examined 2 witnesses and they are;
PW.1-H.D.Kulakarni son of H.P.Devaiah-Complainant,
PW.2-C.N.Shivanna son of Late.Nanjappa-Investigating Officer.
14. The prosecution in order to prove guilt of the
accused in all got marked 4 documents and they are;
Ex.P1-Spot cum Seizure Mahazar, Ex.P2-Complaint,
Ex.P3-FIR, Ex.P4-P.F.11/2016.
10 S.C.1121/2016 &
S.C.1335/2016
15. The prosecution in order to prove guilt of the
accused in all got marked 6 Material Objects and they are;
MO.1-Long, MO.2-Sword, MO.3-Sword, MO.4-Wooden
Club, MO.5-Wooden Club, MO.6-Chilly powder pocket.
16. Prosecution in order to prove the guilt of the
accused beyond reasonable doubt examined PW.1. PW.1 in his
evidence stated that in the year 2016 he was working as Police
Inspector at D.J.Halli Police Station. On 27-01-2016 at 7.30
p.m., he along with his officials CW.4 to 9, when patrolling
within the limits of his Police Station at 7.30 p.m., when they
were at Shampura, he received credible information stating
that within the limits of his Police Station at Shampura Railway
Gate in the open space, 5-6 persons assembled armed with
deadly weapons and making preparation to commit dacoity of
the commuters. Thereafter, he called CW.2 and 3-Panchas
and given information received by him to them. Thereafter, he,
his officials and Panchas came near the spot, they stopped
some distance away from the spot and watched the spot, on
the spot 5-6 persons assembled armed with deadly weapons
and talking among themselves, he confirmed the information
11 S.C.1121/2016 &
S.C.1335/2016
as correct, thereafter they have conducted raid and catch-hold
the accused person, he enquired the said persons and said
persons have given their names and addresses. One person
told his name as Aslam Pasha and he was possessing Long,
second person told his name as Mohammed Iliyas and he was
possessing one Sword, third person told his name as Sujith
Basha and he was also possessing one Sword, fourth person
told his name as Jabber Pasha and he was possessing one
Club, fifth person told his name as Abdul Mohin Khan and he
was possessing one Club, sixth person told his name as Imran
Beig and he was possessing chilly powder pocket. They told
him that they assembled there for committing dacoity in
presence of Panchas, thereafter he brought the said persons
along with the properties seized to the Police Station and
prepared a Report and produce the said person and properties
seized and Report before CW.10 and identified the properties
seized as MO.1 to 5 and identified the said persons as Accused
No.1 to 3, 5 and 6 and stated that he will identify accused
No.4. Further this witness has stated that on 08-02-2016 he
has taken further investigation from CW.10 and as the
12 S.C.1121/2016 &
S.C.1335/2016
investigation is completed, filed the charge-sheet. This
witness has been cross-examined by the counsel for the
accused and in the cross-examination this witness has
admitted that he cannot say what type of clothes were worn by
the said persons on that day. Further this witness has stated
that he cannot say which official has catch-hold which accused
on that day. Further counsel for the accused has suggested to
this witness that the accused persons have been brought from
their respective houses for enquiry in other cases and
implicated in this case and this witness has denied the said
suggestion.
17. Prosecution has examined PW.2. PW.2 in his
evidence stated that in the year 2016 he was working as Police
Sub-Inspector at D.J.Halli Police Station. On 27-01-2016 at
10.30 p.m. when he was in the Police Station, CW.1 along with
his officials came to the Police Station and brought 6 persons
and properties seized from them and produced before him,
CW.1 has given Report, on the basis of the Report he has
registered the case in Crime No.27/2016 and submitted FIR to
the court. He has subjected the properties under P.F.11/2016,
13 S.C.1121/2016 &
S.C.1335/2016
he has arrested the said persons and recorded their voluntary
statements, he has recorded the statements of CW.2 to 9 and
thereafter handed over the further investigation to CW.9.
18. It is the specific case of the accused during cross-
examination of prosecution witnesses that they have not
committed any offences as alleged against them. They have
been brought from their respective houses earlier to the
incident for enquiry in other cases and they have been
implicated in this case. In the present case, prosecution has
not examined the Panchas who alleged to have been
accompanied the complainant for raid. Further the
complainant in his cross-examination admitted that he cannot
say what type of dresses were worn by the said persons on
that day, he cannot say which official has catch-hold which
accused on that day. So the only evidence of PW.1 and 2 will
not prove the guilt of 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;
14 S.C.1121/2016 &
S.C.1335/2016
"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 eliminated. Decision of
Patna High Court, Reversed."
19. From the principles laid down in the aforesaid
rulings of our own Hon'ble Apex Court, it is clear that only on
assembling the persons with deadly weapons itself will not
prove that they have committed offence under Sec.399, 402 of
IPC. The evidence of PW.1 and 2, Ex.P1 to 4, MO.1 to 6 will
not prove the guilt of the accused beyond reasonable doubt.
Looking from any angle, prosecution has utterly failed to prove
the guilt of the accused beyond reasonable doubt. So, looking
15 S.C.1121/2016 &
S.C.1335/2016
from all the facts and circumstances prosecution has utterly
failed to prove the guilt of the accused beyond reasonable
doubt. As per the well settled principle of Criminal Law,
benefit of doubt goes to the accused and in the present case
giving benefit of doubt to the accused, I hold that prosecution
has 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.
24. POINT No.3: In view of my findings point No.1,
2 and reasons stated therein, I proceed to pass the following:
ORDER
Acting under Sec.235(1) Cr.P.C. accused No.1- Aslam Pasha, accused No.2-Mohammed Iliyas, accused No.3-Sujith Basha, accused No.4-Jabeer Khan, accused No.5-Abdul Mohin Khan, accused No.5-Imran Beig are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bonds of the accused stands cancelled forthwith.
MO.1 to 3 are confiscated to the state after the appeal period is over.
16 S.C.1121/2016 & S.C.1335/2016 MO.4 to 6 are worthless articles, hence ordered to be destroyed after the appeal period is over.
(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 December 2016).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 H.D.Kulakarni CW.1 22-11-2016 PW.2 C.N.Shivanna CW.10 02-12-2016 Documents marked for the prosecution:
Ex.P1 Mahazar PW.1 22-11-2016 Ex.P1(a) Signature of PW.1 PW.1 22-11-2016 Ex.P2 Complaint PW.1 22-11-2016 Ex.P2(a) Signature of PW.1 PW.1 22-11-2016 Ex.P3 FIR PW.2 02-12-2016 Ex.P3(a) Signature of PW.2 PW.2 02-12-2016 Ex.P4 P.F.No.11/2016 PW.2 02-12-2016 Ex.P4(a) Signature of PW.2 PW.2 02-12-2016
17 S.C.1121/2016 & S.C.1335/2016 Material objects marked for the prosecution:
MO.1 Long MO.2 Sword MO.3 Sword MO.4 Wooden Club MO.5 Wooden Club MO.6 Chilly powder pocket
Documents marked for the accused:
NIL Witness examined and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
18 S.C.1121/2016 & S.C.1335/2016 JUDGEMENT PRONOUNCED IN THE OPEN COURT VIDE SEPARATE JUDGEMENT ORDER LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.