Bangalore District Court
State Of Karnataka By; vs Syed Tabrej on 3 January, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 3rd day of January 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1217/2016
COMPLAINANT : State of Karnataka by;
Mico Layout Police Station, Bangalore.
(By Learned Public Prosecutor)
- Vs -
ACCUSED Syed Tabrej,
S/o Syed Vasim,
Aged about 23 years,
R/at No.18/59, 6th A Mainroad,
2 Mubarak Pasha @ Palak,
S/o Mehaboob Pasha,
Ag ed about 22 years,
Residing at No.200, I cross,
Madduramma Colony Quarters,
Tavarekere, Bengaluru-29.
3 Tabrej (Split up)
J-1 Salman Khan @ Salman
(person in conflict with law)
J-2 Sathyanarayana @ Nandi @ Sathya
(person in conflict with law)
(A1&2:By Sri. Vasim Pasha, Advocate)
1. Date of commission of offence 05-06-2016
2. Date of report of occurrence 05-06-2016
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3. Date of commencement of evidence 15-11-2016
4. Date of closing of evidence 09-12-2016
5. Name of the complainant Neelakanta.M, PSI
6. Offences complained of Sec.399, 402 I.P.C.
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
JUDGMENT
This case is committed by the VI 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 Sub-Inspector of Mico Layout Police Station has filed charge-sheet against accused for the offences under Sec.399, 402 I.P.C. arising out of Mico-Layout Police Station in Crime No.441/2016.
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 Sub-Inspector of Mico Layout Police on 05-06-2016 at about 08.00 p.m. in the Police Station , he received credible information stating that near Tavarekere Park in the ground 5 persons assembled armed with deadly weapons and making preparation to commit dacoity. CW.1 called his officials and CW.2 and CW.3 pancahs and informed the information received by him to them. Thereafter, CW.1 3 SC.No.1217/2016 and his officials along with panchas came near Bismillanagar Main road in Hoysala Vehicle. Thre, CW.1 sent CW2 and 3 panchas, CW.5 official to the spot for confirming the information and they went near the spot and came back and informed that the information received is correct. Thereafter, CW.1 and his officials conducted raid in presence of pacnhas and catch hold 4 persons, wherein one person ran away by throwing club which was in his hand and thereafter, CW.1 has inquired the said persons, said persons told their names and addresses and they told name of the person ran away as Tabrej. Thereafter, CW.1 has drawn Mahazar in presence of Panchas and seized the deadly weapons. Thereafter, CW.1 has brought the said persons along with the properties seized to Police Station, prepared Report and submitted the Report before CW.8 and produced the said persons and properties before CW.8.
(b) CW.8 who is the Police Sub-Inspector of Mico Layout Police Station, when in the Police Station on 05-06-2016 at 9.45 p.m. CW.1 came to Police Station along with 4 persons and properties seized from them and submitted Report. CW.8, on the basis of report, has registered case in Crime No.441/2016, submitted FIR to the court. CW.8 has subjected the properties under P.F.132/2016. CW.8 has arrested accused No.1 and 2, enquired them, they have given voluntary statement before CW.8, CW.8 has recorded the same. On 4 SC.No.1217/2016 the same day CW.8 has recorded the statement of CW.2 to 5. CW.8 has produced A4 and A5 before juvenile Justice Board as they are persons in conflict with Law. On 6/6/2016, CW.8 has produced A1 and 2 before the court and obtained police custody of them till 8/6/2016. On the same day,CW.8 called A4 and 5 from Juvenile Home and obtained their voluntary statements and thereafter, entrusted A5 and 4 to the Juvenile Justice Board. On 7/6/2016 as per the voluntary statements given by A1 and 2 before CW.8, they taken panchas and cw.8 and shown 5 two wheeler vehicles and one bag pertaining to other cases. CW.8 seized the same by drawing mahazar. CW.8 has recorded the statements of CW.6 and 7 panchas. Thereafter, CW.8 has entrusted A1 and A2 to Judicial custody.
c) On 20/6/2016, CW.8 has released Bajaj Pulsar Two wheeler vehicle in favour of CW.7 as per the orders of the court. On 7/9/2016, CW.8 has directed his official ie., P.C.10325 to catch hold absconding A3 and produce before him. On the same day said P.C.10325 has catch hold A3 and produced before CW.8. CW.8 has inquired him and recorded the voluntary statement given by him. As A3 is the person in conflict with law, so CW.8 has entrusted him to Juvenile Justice Board. Thereafter, CW.8 has filed the charge-sheet against the accused.
4. After filing the charge-sheet by the Investigating Officer, VI Addl. City Metropolitan Magistrate Court, Bengaluru has taken 5 SC.No.1217/2016 cognizance and registered the case in C.C.20490/2016. Thereafter, VI Addl. City Metropolitan Magistrate Court, Bengaluru has secured the presence of accused No.1 and 2 and furnished charge-sheet copies to them as contemplated under Sec.207 of Cr.P.C. and committed the case against accused No.1 and 2 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1217/2016 and made over to this court for disposal according to law 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.1 and 2 and enlarged them on bail. Thereafter, heard the counsel for accused and learned Public Prosecutor for state on charge to be framed. Charge under section under Sec.228 of Cr.P.C. framed against the accused No.1 and 2 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.
6. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 5 witnesses as PW.1 to 5 and got marked 8 documents as per Ex.P1 to 8 and marked the 5 material objects as MO.1 to 5 and closed its side. Accused are 6 SC.No.1217/2016 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 and further stated that accused have no defence evidence and they have 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 for state in length.
8. The points that arise for my determination are:
1) Whether the prosecution proves beyond reasonable doubt that accused No.1 and 2 along with persons in conflict with law ie., Tabrej, Salman Khan and Sathyanarayana on 05-06-2016 at 8-05 p.m., within the limits of Mico-layout Police Station at B.T.M Lay out, I stage, Bismilla Nagara main road, in the ground which is abutting to Tavarekere Park, parked the Bajaj Pulsar and Yamaha Motor cycles armed with deadly weapons and making preparation to commit dacoity and thereby accused have committed the offence under Sec.399 of IPC?
2) Whether the prosecution proves beyond reasonable doubt that accused No.1 and 2 along with persons in conflict with law ie., Tabrej, Salman Khan and Sathyanarayana 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?7 SC.No.1217/2016
3) What order?
9. 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
10. POINT No.1 AND 2: The above points are 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, 402 of I.P.C. and in order to prove the guilt of the accused the prosecution in all examined 5 witnesses and they are;
PW.1 Neelakanta-complainant, PW.2-Gokul Krishna-owner of Yamaha Motor cycle, PW.3-Babu spot and seizure mahazar, PW.4 spot mahazar and seizure witness, PW.5 is the P.S.I.
12. The prosecution in order to prove guilt of the accused in all got marked 4 documents and they are;
Ex.P1-Mahazar, Ex.P2-Complaint, Ex.P3- seizure mahzar of Bajaj Pulsar, Ex.P4 is seizure mahazar of Yamaha Motor cycle, Ex.P5 is the statement of PW.2, Ex.P6 statement of PW.3, Ex.P7 is the statement of Shoeb, Ex.P8 is the F.I.R.
8 SC.No.1217/2016
13. The prosecution in order to prove guilt of the accused in all got marked 5 Material Objects and they are;
MO.1-one iron chopper, MO.2-Knife, MO.3-Chilly powder pocket, MO.4 and MO.5-Clubs.
14. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined PW.1 and PW.1 in his evidence stated that from July-2013 to July2016, he was working as P.S.I in Mico Layout Police Station, on 5/6/2016 he received credible information stating that near Tavarekere Park in a ground, 5 persons assembled with deadly weapons and making preparation to commit dacoity. Thereafter, CW.1 called his officials CWs.4 and 5 and informed the information received to him to them, he also called CWs2 and 3 Panchas and informed about the information received to him. Thereafter, he, his officials and Panchas came near Bismilla Nagara Main road in Hoysala vehicle. There, he sent CW.5, CWs2 and 3panchas to the spot for confirmation of information and they confirmed the information as correct, thereafter they have conducted raid and catch-hold 4 persons, one person ran away by throwing a club, which was in his hand. Further this witness has stated that, he and CW.4 catch hold one person, he was possessing one chopper, his official Shivakumar catch-hold one person and he was possessing knife, official Swaminathan catch hold one person and he was possessing 9 SC.No.1217/2016 chilly powder pocket. His officials Akbar Pasha and Hanumanthachar catch hold one person and he was possessing one club. At the spot, one Pulsar and one Yamaha two wheeler vehicles were there. He enquired the said persons regarding motor cycles,, they told that they have stolen the said motor cycles. Further the said persons have told that they assembled their for committing dacoity. Thereafter, he drawn mahazar in the presence of panchas and seized deadly weapons and two wheelers in presence of panchas. Thereafter, they brought the said persons and properties seized to the Police Station. He prepared report and submitted before CW.8 and identified the properties seized as M.O.1 to 5. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that he has forgotten the names of said persons, he cannot say which weapon was in whose hand on that day.
15. Prosecution has examined PW.2. PW.2 in his evidence stated that, he is the owner of Yamaha two-wheeler and in his evidence he has stated that, on 26/6/2016 police called him to the Police Station and shown Yamaha vehicle bearing No. KL-07-BL-189 and he has lodged a complaint for theft of said vehicle on 19/6/2016 and the police have shown his vehicle. He is not knowing who has committed the theft of vehicles, police have not shown the persons who have committed the theft. This witness has been cross-examined 10 SC.No.1217/2016 by the counsel for the accused and in the cross-examination nothing has been made out so as to prove the guilt of accused.
16. Prosecution has examined PW.3 and 4 and they are panchas on spot cum seizure mahazar and they in their evidence, have stated that police have obtained their signatures in the Police Station and the police have not taken them to any place and they have not conducted mahazar in their presence and the police have not seized any vehicle in their presence. Prosecution has treated these witnesses as hostile and nothing has been made in their cross-examination so as to help the prosecution to prove the guilt of the accused.
17. Prosecution has examined PW.5 and he has stated that in the year 2016 he was working as Police Sub-Inspector of Mico-Layout Police Station and on 5/6/2016 at 9-45pm, when he was incharge of the Police Station, CW.1 came to the Police Station along with 4 accused persons and properties seized and submitted the report. On the basis of the report, he registered the case in Crime.No.441/2016 and submitted the F.I.R to the court. He has subjected the properties under P.F.No.132/2016, thereafter he arrested A1 and 2 and recorded their voluntary statements. He sent Accused No.4 and 5 to Juvenile Justice Board as they are persons in conflict under law. On 6/6/2016 he produced A1 and A2 before the court and obtained police custody till 8/6/2011. On the same day, he brought Accused No.4 and 5 to the 11 SC.No.1217/2016 Police Station and recorded their voluntary statements. Thereafter, he sent the Accused NO.4 and 5 to Juvenile Justice Board. On 7/6/2016, accused No.1 and 2 have taken him and panchas and shown 5 two wheeler vehicles and one bag pertaining to other case and he drawn mahazar and seized the same. On 7/9/2016 he directed his official P.C.10325 to catch hold Accused No.3 and on the same day, P.C.10325 produced the accused No.3 before him and he arrested accused No.3 and recorded his voluntary statement and sent him to Juvenile Justice Board as he is the person under conflict of law. Thereafter, after completion of investigation, he submitted the charge-sheet against Accused No.1 and 2 for the alleged offences.
17. It is the specific case of accused during the cross- examination of prosecution witnesses that, they have not committed any offences as alleged against them. They have been brought from their respective houses and got implicated them in this case. In the present case, complainant in his cross-examination admitted that he cannot say the names of accused No.1 to 4. He cannot say which accused was holding which weapon. The panchas examined by prosecution as PW.2 and 3 have turned hostile. Except the evidence of PW.1, there is no other evidence to prove the guilt of the accused beyond reasonable doubt.
12 SC.No.1217/2016
18. 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 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 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 to 5, Ex.P1 to 8 and MO.1 to 5 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. As per the well settled principle of Criminal Law, benefit of doubt goes to the accused and in the present case giving benefit of 13 SC.No.1217/2016 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.
19. 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- Arif Khan @ Arif, accused No.2- Mubarak Pasha @ Palak are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith. Separate charge-sheet is filed against Accused No.3 to 5 before Juvenile Justice Board, hence, no order as to disposal of properties.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 3rd day of January 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Neelakantan CW.1 15-11-2016
PW.2 Godul Krishnan CW.6 25-11-2016
PW.3 Babu CW.2 09-12-2016
PW.4 Shoeb CW.3 09-12-2016
PW.5 D.N.Nataraj CW.8 09-12-2016
14 SC.No.1217/2016
Documents marked for the prosecution:
Ex.P1 Mahazar PW.1 15-11-2016
Ex.P1(a) Signature of PW.1 PW.1 15-11-2016
Ex.P2 Complaint PW.1 15-11-2016
Ex.P2(a) Signature of PW.1 PW.1 15-11-2016
Ex.P3 Seizure mahazar PW.1 15-11-2016
Ex.P4 Seizure mahazar PW.1 15-11-2016
Exp.5 Statement of PW.2 CW.6 25-11-2016
Ex.P6 Statement of PW.3 CW.2 09-12-2016
Exp.7 Statement of PW.4 CW.3 09-12-2016
Material objects marked for the prosecution:
MO.1 One Iron long chopper MO.2 Knife MO.3 Chilly powder pocket MO.4 Wooden club MO.5 Wooden Club
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.15 SC.No.1217/2016
Judgment pronounced in the open court (vide separate judgment) ORDER Acting under Sec.235(1) Cr.P.C.
accused No.1- Arif Khan @ Arif, accused No.2- Mubarak Pasha @ Palak are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith.
Separate charge-sheet is filed against Accused No.3 to 5 before Juvenile Justice Board, hence, no order as to disposal of properties.
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.16 SC.No.1217/2016