Bangalore District Court
The State Of Karnataka vs A4 Afroz Khan S/O @ Khan on 8 April, 2022
KABC010008492020
IN THE COURT OF THE LX ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (C.C.H.61)
Dated this the 8th day of April, 2022
:PRESENT :
Sri Vidyadhar Shirahatti, LL.M,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No. 69/ 2020
COMPLAINANT:- The State of Karnataka,
By Madivala Police Station,
Bengaluru.
(By Public Prosecutor)
Vs
ACCUSED:- A4 Afroz Khan S/o @ Khan
Appu S/o Late Allabakash,
Aged about 22 years,
R/at: No.17, 1st cross,
Nagappa Layout, Somasundarapalya,
HSR Layout, Bangalore.
Date of offence 15.11.2015
Date of report of offence 15.11.2015 at 23.30 hours
Name of the complainant Ramakrishnaiah, ASI
Date of commencement of 09.03.2022
recording of evidence
Date of closing of evidence 24.03.2022
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Offences complained of Sec. 399 and 402 of IPC
Opinion of the Judge Accused No.4 found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri SRD, Advocate for accused
No.4
JUDGMENT
This is a charge sheet filed by Madiwala Police against accused No.4 for the offences punishable U/Sec.399 and 402 of IPC alleging that on 15.11.2015 at about 21.00 hours, accused persons were assembled in the vacant place situated near J.S.S. School, 6th Sector, HSR Layout within limits of Madivala Police Station, by holding deadly weapons like iron rod and wooden clubs and were making preparations to commit dacoity by preventing the lonely persons who were moving in the said place and thus committed the offences punishable U/Sec. 399 and 402 of IPC.
2. The learned III Addl. Chief Metropolitan Magistrate, Bangalore, took cognizance by registering the case in CC No. 7630/2016 and committed the case against accused No.4 vide committal order dated 21.10.2019 to Prl. City Civil and Sessions Court and the same was registered as SC No.69/2020 and made over to this Court for trial. The copy of charge sheet is furnished to 3 SC 69/2020 Accused No.4. Thereafter, accused no.4 has been released on bail.
3. The charge against accused No.4 for the offences punishable U/Sec.399 and 402 of IPC has been framed, the contents of the charge for the above said offences read over in the language known to accused No.4 and he denied the same and claimed to be tried. During the course of trial, Accused No.4 also enlarged on bail by this Court.
4. In support of its case, prosecution examined in all two witnesses as PW1 and PW2 and got marked documents as per Ex.P.1 to 3 and M.O.1 to 3 in SC No. 426/2016.
5. Thereafter, the statement of accused No.4 under Sec.313 of Cr.P.C., is recorded. The case of defence is total denial of prosecution case and the defence examined none and no documents are marked.
6. Heard the arguments of learned Public Prosecutor for state and learned counsel for accused No.4. Perused the records.
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7. The only points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond all reasonable doubts that on 15.11.2015 at about 9.00 p.m., accused persons gathered in the vacant place situated near J.S.S.School, 6th Sector, HSR Layout, within limits of Madivala Police Station, by holding deadly weapons like iron rod and clubs and were found making preparations to commit dacoity by holding deadly weapons and thus committed offence U/s.399 of IPC?
2) Whether the prosecution proves beyond all reasonable doubts that on the above said date, time, place and circumstances, that the accused persons along with other accused assembled by holding deadly weapons for the purpose of committing dacoity and thus committed offence U/s.402 of IPC?
3) What order?
8. My answer to the above points are as under:-
Point No.1:- In the Negative Point No.2:- In the Negative Point No.3:- As per final order for the following:-5 SC 69/2020
REASONS
9. Point No.1 and 2:- I have carefully gone through the contents of the charge sheet, evidence of PW1 and PW2 coupled with contents of Ex.P.1 to 3 and other materials placed on record. PW1 P.Ramakrishnaiah, PSI, Madivala Police Station has spoken to the facts that on 15.11.2015 at about 9.00 p.m. while he was on night duty at Hoysala Vehicle, received credible information regarding gathering of 4-5 persons at the open ground of JSS college, at HSR Layout, armed with deadly weapons and making preparations to commit dacoity. Immediately, he secured CW2 and 3 as panchas and secured police staff i.e CW4 to 8 and went to the said place where he observed that about five persons armed with deadly weapons were found making preparations to commit dacoity. Then on confirming about the information, they surrounded those persons and apprehended three persons and the other two persons ran away from the place.
10. Thereafter, he conducted mahazar and seized the iron rod and two wooden clubs from the arrested accused persons. Then returned to the Police Station along with accused and material objects and filed complaint as per Ex.P.1. Further, he 6 SC 69/2020 identified the spot cum seizure mahazar as per Ex.P.2. He identified the iron rod and clubs as M.O.1 to 3 and also identified accused No.1 present before the Court and he states that he can identify the other accused, if shown to him. He also recorded statement of two pancha witnesses.
11. In the cross-examination, PW1 states that he was in the 6th beat at HSR Layout when he received the information. He denied the suggestion that there would be movement of people up to 10.00 p.m. everyday on that road. He admits the suggestion that there was a petrol bunk in front of JSS School and it would be open from morning 6.00 a.m. to night 10.00 p.m. He further admits the suggestion that there is a BDA complex by the side of JSS School and there are shopping malls in the complex. He also admits the suggestion that the JSS School has got two gates and it would be guarded by security guard throughout the day. He also admits that in the BDA complex, there are two ATMs located and they are also guarded by security persons. He further admits that residential houses are located by the side of JSS Main Gate. He denied the suggestion that he falsely implicated the accused in this case.
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12. PW2 N.Ramesh, PSI, Madiwala Police Station states that on 15.11.2015 he was SHO on duty. At about 11.30 p.m. CW1 and other Hoysala brought three accused persons and three articles and filed complaint before him and accordingly, he registered the complaint in Cr.No. 2122/2015 and submitted FIR to the Court. Thereafter, he recorded the voluntary statement of said three accused persons and recorded statement of CW4 to 9 and filed PF. After completing the investigation, he filed charge sheet by showing Accused No.4 and 5 as absconding. He identified FIR as per Ex.P.3 and M.O.1 to 3.
13. In the cross-examination he admits that JSS School is located by the side of the Ring Road and there would be traffic in the ring road. There is a petrol bunk in front of the school. He also admitted that JSS School has two main gates guarded by watchmen. He admits that there are two ATMs near the school, which are also guarded by security guards. He denied the other suggestions of learned counsel for accused.
14. On careful appreciation of evidence of PW1, it can be said that though he states regarding raid conducted by him, he has not stated the acts of each accused and the role played by 8 SC 69/2020 each of them while committing offences alleged. He has not stated as to who held whom while apprehending accused persons. He does not state the facts which would amount to committing offences u/s 399 and 402 of IPC. Therefore the evidence of PW1 itself is not sufficient to believe that accused No. 4 along with other accused persons assembled in the said place on the date of incident and were found making preparations to commit dacoity. Because this witness never states as to how he got confirmed about the activities of the accused which would amount to committing offences alleged. He has not stated the acts of each accused when he observed the gathering of the accused over the said place. He has not stated the actual facts which would amount to committing of offences alleged.
15. In other words, PW1 has not deposed as to which of the acts of these accused would amount to making preparations to commit dacoity. Admittedly, none of the locality persons or the persons present near the place of incident, complained about the activities of these accused over the said place. Further, the chits containing the signatures of pancha witnesses are not affixed on the seized articles. Doubt arises as to the seizure of M.O.1 to 3 from the possession of these accused and others. As such, the 9 SC 69/2020 only evidence of PW1, is not sufficient to believe the case of the prosecution.
16. Further, evidence of PW 2 assumes little importance as he simply registered crime and produced accused before Court and hence his evidence is consequential in nature.
17. Further, except the bare and bald evidence of PW1, there is no any other cogent and consistent, corroborative material on record to believe the case of the prosecution. Though PW1 states as to the seizure of M.O.1 to 3 from the possession of the accused No.1 to 3, the witnesses in whose presence the mahazar was drawn, are not examined by the prosecution. Hence, seizure of M.O.1 to 3 from the possession of the accused is doubtful. Further, the facts narrated by PW1 do not amount to committing any offences as alleged by the accused. Further, the facts elicited in cross examination of PW1 and PW2, go to show that the alleged place of occurrence is busy place consisting petrol bunk which is open from morning 6.00 A.M. to night 10 A.M. and also consisting ATMs, BDA complex comprising shopping mal and JSS School guarded by watchmen through out the day. The time of the alleged incident is 9.00 p.m. Admittedly, the alleged 10 SC 69/2020 place of occurrence being busy place, none of the passers by and the local persons complained about the gathering and activities of the accused No.1 and 3 and others over the said place. So, doubt arises as to the gathering of the accused and their making any preparations to commit dacoity. As such the materials placed on record by the prosecution are not sufficient to believe the case of the prosecution.
18. Having regard to all these facts and circumstances, I am of the considered view that the only evidence of PW1 and PW2 cannot be relied upon to believe the case of the prosecution and to hold the accused guilty of the offences alleged. Further, though learned Public Prosecutor has made all efforts to secure CW2 and CW3, police failed to secure their presence. Hence non examination of CW 2 and 3 is fatal to the case of prosecution. Having regard to all these facts and circumstances, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubts. Hence, accused No. 4 is entitled to get benefit of doubt. Accordingly, I answer point No.1 and 2 in the Negative.
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19. Point No.3:- In view of my findings on point No.1 and 2, I proceed to pass the following;
ORDER Acting u/s 235 (1) of Cr.P.C., Accused No.4 is hereby acquitted for the offences punishable under Sec.399 and 402 of IPC.
The bail bond and surety bond executed by the accused No.4 and surety shall stands cancelled.
The bail bond and surety bond executed by accused No. 4 as required U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Charge sheet Papers and other materials on record are to be preserved till disposal of split up charge sheet pending against accused.
(Dictated to Stenographer directly on computer, typed by him, revised by me and then pronounced by me in open court on this the 8 th day of April, 2022) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Ramakrishnaiah
PW2 N.Ramesh
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List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint Ex.P.2 Mahazar Ex.P.3 FIR
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution :
M.O1 Iron rod
M.O.2-3 clubs
Note : Exhibits and M.Os are marked
in SC No. 426/2016.
LX Addl.City Civil & Sessions Judge,
Bengaluru.
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