Bangalore District Court
State Of Karnataka By; vs Thousif .........Split Up on 19 September, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 19th day of September 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.581/2016
COMPLAINANT : State of Karnataka by;
Girinagar Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Thousif .........Split up
2. Salman Pasha .....split up
3. Jameel .....Split-up
4. Nawaj Pasha,S/o Nawab Jan,
20 years, No.339, Near Noor Maszid,
Yarab Nagara, Banashankari 2nd stage,
Bengaluru.
5. Asiq .....Split-up
6. Nadeem Khan .....Split-up
(By Sri.K.Elangovan, Advocate)
1. Date of commission of offence 20-12-2012
2. Date of report of occurrence 20-12-2012
2 S.C.No.581/2016
3. Date of commencement of evidence 23-08-2016
4. Date of closing of evidence 23-08-2016
5. Name of the complainant Sri.H.S.Marulappa,
6. Offences complained of Sec.399 and 402 IPC
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
JUDGMENT
This case is committed by the XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru City, to the Hon'ble Prl. City Civil and Sessions Court, Bengaluru on the ground that offences punishable under Sec.399 and 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Inspector of Girinagara Police Station has filed charge-sheet against accused for the offences punishable under Sec.399 and 402 of IPC arising out of Indiranagar Police Station in Crime No.308/2012.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1 who is the Police Inspector of Girinagar Police Station on 20-12-2012 at 8-30 p.m., when patrolling within the limits of their Police 3 S.C.No.581/2016 Station, received credible information stating that near Hosakerehalli Sapthagiri Layout, 6 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, CW.1 has called the CW.2 and CW.3 as Panchas and CW.4 to 10 and informed the information received by him to them thereafter CW.1, his officials and Panchas came near the spot and stopped some distance away from the spot and watched the spot, on the spot 6 persons assembled armed with deadly weapons by parking on Auto-
rikshaw. CW.1 has confirmed that information received is correct thereafter CW.1 and his officials have conducted raid and catch-hold 6 persons and CW.1 has enquired the persons, the said persons have told their names and addresses. The said persons also told that they assembled there for committing dacoity. Thereafter CW.1 has drawn the Mahazar and seized the deadly weapons and also seized the vehicle Auto-rikshaw by drawing Seizure Mahazar. Thereafter, CW.1 and his officials have brought the said persons to the Police Station along with properties to the Police Station. CW.1 has prepared Report and submitted the report before CW.11.4 S.C.No.581/2016
3(b) CW.11 who is the Police Inspector of Girinagar Police Station has obtained the report submitted by CW.11 and registered the case in Cr.P.C.No.308/2012 and submitted the F.I.R to the court. CW.11 arrested the said persons and recorded their voluntary statements and subjected the properties under P.F. CW.11 has recorded statements of CW.2 to 10. Thereafter, as investigation is completed, CW.11 has filed charge sheet against the accused for the offences under Sec.399, 402 of I.P.C.
4. After filing the charge-sheet by the Investigating Officer, XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered the case in C.C.10796/2016 and secured the presence of accused No.4 and furnished charge sheet copy to him. Eventhough, 26th Addl.Chief Metropolitan Magistrate Court, Bengaluru has issued NBW against A1 to 3, 5 and 6, same returned unexecuted and as delay is caused, 24th Addl.Chief Metropolitan Magistrate Court, Bengaluru has splitted the case against accused No.1 to 3 and 5 and 6 and directed the Investigating Officer to file a separate charge-sheet against 5 S.C.No.581/2016 them. Thereafter, the XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru has committed the case against accused No.4 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.581/2016 and made-over to this court for disposal according to law against accused as the offences alleged are triable by the Sessions Court.
5. After receipt of the papers this court has secured presence of accused No.4. Thereafter, this court has heard the counsel for accused and learned Public Prosecutor on charge to be framed. Charge under Sec.228 of Cr.P.C. framed against the accused No.4 for the offences under Sec.399, 402 of IPC and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried.
6. Thereafter, Prosecution has called upon to prove the guilt of the accused by examining the Prosecution witnesses. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt examined one witnesses as PW.1 and got marked 1 document as Ex.P1 to 3 and marked 6 material objects as MO.1 to 6 and closed its side. 6 S.C.No.581/2016 Thereafter, accused examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement in toto and further stated that he has no defence evidence and he has nothing to say thereafter the case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor on behalf of the state in length.
8. The points that arise for my determination are:
1. Whether the prosecution proves beyond reasonable doubt that accused No.4 along with splitted accused No.1 to 3, 5 and 6 on 20/12/2012 at 8.30 p.m. within the limits of Girinagar Police Station at Banashankari 3rd stage, Hosakerehalli Chetty BAbu layout in the open space of Sapthagiri layout, assembled armed with deadly weapons and making preparation to commit dacoity and thereby committed the offence punishable under Sec.399 of IPC?7 S.C.No.581/2016
2. Whether the prosecution proves beyond reasonable doubt that accused No.4 along with splitted accused No.1 to 3, 5 and 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?
3. What order?
9. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : In the Negative;
Point No.3 : As per final order
For the following
REASONS
10. POINT No.1 AND 2: The above points are inter connected, hence they are taken up together for discussion together.
11. It is the case of the prosecution that the accused have committed the offences punishable under Sec.399 and 402 of IPC and in order to prove the guilt of the accused the prosecution has examined one witness as PW.1. 8 S.C.No.581/2016
12. The prosecution in order to prove guilt of the accused in all got marked 3 documents as Ex.P1 to 3, they are Ex.P1 is mahazar, Ex.P2 is complaint and Ex.P3 photos of auto-rikshaw. Prosecution got marked 6 Material Objects and they are; MO.1-Long, MO.2-club, MO.3-knife, MO.4-club, MO.5 rope and MO.6 is chilly powder packet.
13. Prosecution in order to prove the guilt of the accused examined PW.1. PW.1 on 20-12-2012 at 8-30 p.m., when patrolling within the limits of their Police Station, received credible information stating that near Hosakerehalli Sapthagiri Layout, 6 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, CW.1 has called the CW.2 and CW.3 as Panchas and CW.4 to 10-officials and informed the information received by him to them thereafter CW.1, his officials and Panchas came near the spot and stopped some distance away from the spot and watched the spot, on the spot 6 persons assembled armed with deadly weapons by parking on Auto-rikshaw. CW.1 has confirmed that information received is correct thereafter CW.1 and his officials have conducted raid and 9 S.C.No.581/2016 catch-hold 6 persons and CW.1 has enquired the persons and the said persons have told their names and addresses. The said persons also told that they assembled there for committing dacoity. Thereafter CW.1 has drawn the Mahazar and seized the deadly weapons and also seized the vehicle Auto-rikshaw by drawing Seizure Mahazar. Thereafter, CW.1 and his officials have brought the said persons to the Police Station along with properties to the Police Station. CW.1 has prepared Report and submitted the report before CW.11. Further this witness has identified the mahazar drawn by him as Ex.P1 and identified the deadly weapons seized by him as M.O.1 to 6.
15. Further this witness has been cross-examined by the counsel for accused and this witness has admitted that on that day, they have not got searched themselves before conducting raid. Further this witness has admitted that he cannot say on the spot, which accused was uttered which words and he cannot say what colour dress worn by the said person. Further this witness has admitted that on M.O.1 to 6, chits signed by panchas are not affixed.
10 S.C.No.581/2016
16. It is the specific case of the accused during the cross-examination of prosecution witness that he has not committed any offences as alleged against him and he has been brought from his house and implicated in this case only to harass him. In the present case, the prosecution has not examined Panchas who alleged to have accompanied the Investigating Officer for raid. Further in the present case, prosecution has not examined the other officials. PW.1 in his cross-examination has admitted that he cannot say what type of colour dress worn by accused, he cannot say what the said persons talking themselves at the spot. So, only evidence of PW.1, documents Ex.P1 to 3 and M.O.1 to 6 will not prove the guilt of the accused beyond reasonable doubt.
17. 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;
"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 11 S.C.No.581/2016 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."
18. From the principles laid down in the above cited rulings of our own Hon'ble Apex Court, it is clear that only assembling the persons with deadly weapons itself will not prove that they have committed offence under Sec.399, 402 of IPC. As per the well settled principle of law, the benefit of doubt goes to the accused and in the present case accused is entitled for the benefit of doubt. In the present case looking from any angle, the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. The evidence of PW.1, Ex.P1 to 3 and M.O.1 to 6 will not prove the guilt of the accused beyond reasonable doubt. Hence giving the 12 S.C.No.581/2016 benefit of doubt to the accused, I hold that prosecution 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.
19. POINT No.3: In view of my findings point No.1 and 2 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.4- Nawaj Pasha is acquitted for the offences punishable under Sec.399 and 402 of IPC.
Bail bond of the accused shall stands cancelled forthwith.As the case against accused No.1 to 3, 5 and 6
is splitted, no order as to disposal of MO.1 to 6.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 19th day of September, 2016).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.13 S.C.No.581/2016
ANNEXURE Witnesses examined for the prosecution:
PW.1 H.S.Marulappa CW.1 23-08-2016 Documents marked for the prosecution:
Ex.P1 Mahazar CW.1 23/8/2016 Ex.P1a Signature of PW.1 CW.1 23/8/2016 Ex.P2 Complaint CW.1 23/8/2016 Ex.P2a Signature of PW.1 CW.1 23/8/2016 Ex.P3 Two photos of Auto CW.1 23/8/2016
Material objects marked for the prosecution:
MO.1 Long MO.2 Club MO.3 Knife MO.4 Club MO.5 Rope MO.8 One chilly powder packet
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.