Bangalore District Court
Siddiq vs Abdul Mazeed on 1 April, 2024
KABC030151192018
Presented on : 28-02-2018
Registered on : 28-02-2018
Decided on : 01-04-2024
Duration : 6 years, 1 months, 4 days
IN THE COURT OF THE XXXII ADDL., CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
PRESENT:
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M,
Bengaluru.
Dated this the 01st day of April, 2024
C.C.No.5523/2018
Complainant: The State through
Police Sub Inspector,
R.T.Nagar PS, Bengaluru.
(By Asst. Public Prosecutor)
V/s
Accused : 2). Mohiuddin Shariff,
S/o.Abdul Raheem,
Aged about 46 years,
R/at. No. 25, 2nd main,
Kausar Nagar, R.T.Nagar,
Bengaluru-32.
3). Md.Shakeel Rahman
@ Mohammed Shakil,
S/o.Abdul A.K.Shareef,
Aged about 51 years,.
R/at. No. 23, 1st cross, Dinnur,
Kausar Nagar, R.T.Nagar,
Bengaluru-32.
2 C.C.5523/2018
4). Tayab UR Rehman,
S/o.Parveez,
Aged about 50 years,
R/a.No.29/A, 5th cross, Rehmath
Nagar, R.T.Nagar, Bengaluru-32.
5). Musheer Ahmed,
S/o.Basheer Ahmed,
Aged about 43 years,
R/at. No. 69/75, 3rd main,
Kausar Nagar, R.T.Nagar,
Bengaluru-32.
(Note case against accused No.1-Abdul Majeed is split up
from this case and registered in C.C.31401/2022)
(By Sri. D.A.A...Adv.,)
Date of commencement of : 05.11.2017
offence
Date of report of offence : 05.11.2017
Arrest of the Accused : ---
Name of the Informant : Siddiq
Date of commencement of : 11.09.2023
recording evidence
Date of closing of evidence : 16.11.2023
Offences complained of : U/s.341, 323, 325 and
506 r/w Sec. 149 of IPC
Opinion of the Judge : Accused No.2 to 5 are
found not guilty
Date of Judgment : 01.04.2024
XXXII A.C.M.M.,
Bengaluru.
3 C.C.5523/2018
JUDGMENT
The Police Sub Inspector of R.T.Nagar P.S has submitted the Charge Sheet against the accused No.1 to 5 for the offences punishable U/s. 341, 323, 325 and 506 r/w Sec. 149 of IPC.
2. The brief facts of the Prosecution case are as follows:
That there is a dispute between CW1 and accused persons and also case is pending in the Court.
That on 5/11/2017 at about 1-15 P.M, when C.W.1 was going to his home after his Namaz the accused No.1 to 5 wrongfully restrained C.W.1 at Maszid-e- Kousar, 2 nd main, Kousar Nagar and picked up quarrel with C.W.1 and the accused No.1 punched on the eyes of the C.W.1 and the accused No.2 to 5 without any provocation assaulted C.W.1 with hands on his body, back and chin and kicked him and made him to fall down and caused hurt.
Further the accused persons criminally intimidated to the life of C.W.1 and thereby the accused persons have committed the offences punishable u/s 341, 323, 325 and 506 r/w Sec. 149 of IPC.4 C.C.5523/2018
3. On the basis of the Statement of CW1, the R.T.Nagar Police have registered a case under Crime No.316/2017 for the offences punishable u/s 341, 323 and 506 r/w Sec. 149 of IPC against the accused No.1 to 5 and submitted the FIR before the court. Thereafter the investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused No.1 to 5 for the offences punishable u/s 341, 323, 325 and 506 r/w Sec.149 of IPC. On the receipt of the police report, this court has taken cognizance for the said offences.
4. On the appearance of the accused No.2 to 5, the accused No.2 to 5 appeared before the court and were released on bail. The accused No.1 remained absent, hence the criminal case against him is ordered to be split up and case against accused No.1 is split up and registered in C.C.31401/2022. The copies of prosecution papers were furnished to the accused No.2 to 5 as contemplated U/Sec.207 of Cr.P.C. After hearing both the parties, the charge was framed against the accused No.2 to 5 for the offences punishable u/s 341, 325, 323 and 506 r/w Sec. 149 of IPC and read over to them. Accused No.2 to 5 pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5 C.C.5523/2018
5. In order to bring home the guilt of the accused No.2 to 5, the prosecution has got examined 05 witnesses as PW1 to PW5, out of the total charge sheet witnesses as CW1 to 7 and got marked documents as Ex.P1 to P.3. Inspite of sufficient issuance of summons, NBW and proclamation to CW 2, 5, 8 these witnesses have not been secured. Hence the evidence of CW-2, 5 and 8 is dropped.
6. After closure of prosecution evidence, the accused No.2 to 5 are examined U/s.313 of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused No.2 to 5 is separately read over to the accused No.2 to 5. The accused No.2 to 5 denied all such circumstances as false. The accused No.2 to 5 did not choose to adduce defense evidence and no documents are got marked, on their behalf and submits their written defence statement.
7. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused No.2 to 5 .
6 C.C.5523/2018
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 5/11/2017 at about 1.15 P.M, when C.W.1 was going to his home after his Namaz the accused No.2 to 5 (along with accused No.1 against whom split up case is registered) wrongfully restrained C.W.1 at Maszid-e-Kousar, 2nd main, Kousar Nagar and thereby the accused No.2 to 5 have committed the offence of "wrongful restraint" punishable U/Sec. 341 r/w Sec. 149 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, place and time the accused No.2 to 5 without any provocation kicked and assaulted CW-1 and voluntarily caused hurt and thereby the accused No.2 to 5 have committed the offence of "voluntarily causing hurt" punishable u/s 323 r/w Sec. 149 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, place and time the accused No.2 to 5 along with accused No.1(against whom split up case is 7 C.C.5523/2018 registered) without any provocation kicked and assaulted CW-1 and caused grievous hurt and thereby the accused No.2 to 5 have committed the offence of "voluntarily causing grievous hurt" punishable u/s 325 r/w Sec. 149 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that on the above said date, place and time, the accused No.2 to 5 (along with accused No.1 against whom split up case is registered) criminally intimidated to the life of C.W.1 and thereby the accused No.2 to 5 have committed the offence of "criminal intimidation" punishable u/s 506 r/w Sec. 149 of IPC?
5. What Order?
9. My findings to the above Points are as under:
Points No.1 to 4 : In the Negative.
Point No.5 : As per final order,
For the following: -
REASONS
10. Points No.1 to 4 :- As these points are interlinked with each other and also similar evidence is led on all these points, I have 8 C.C.5523/2018 taken all these points together for common discussion in order to avoid repetition of facts and discussion.
11. It is the allegation that the accused No.2 to 5 have committed the offences punishable u/s 341, 323 and 506 r/w Sec.
149 of IPC.
12. In order to prove its case, the prosecution has got examined the C.W.1/informant of crime by name Mohammed Siddiq as P.W.2, C.W.6-Dr.Poorneshan Raju as P.W.1, C.W.4-Irshad Shariff as P.W.3, C.W.7-Lankarajappa.H.D as P.W.4 and C.W.3-Sayeed Khuram as P.W.5.
Out of the documents marked for the prosecution Ex.P1 is the wound certificate, Ex.P.2 is the complaint and Ex.P3 is the Mahazar.
13. During the course of trial, the accused No.2 to 5 took up defence that no incident took place as alleged and the complainant has filed this false case.
14. C.W.1/P.W.2-Mohammed Siddiq- in his evidence deposed that he knows the C.W.2 to 4 and the accused persons and on 05.11.2017 when he was at Masjid at Kausar Nagar, the accused 9 C.C.5523/2018 persons went there and made galata so as to take the Masjid to their custody and exchange of words took place and the accused persons abused him in filthy language, caught hold of him and assaulted him and he sustained grevious injury on his eyes and face and the accused persons threatened him with dire consequences. Further P.W.1 deposed that he took treatment for the injuries sustained due to the assault made by the accused persons and he lodged complaint which is Ex.P.2 and police drew mahazar as per Ex.P.3.
15. During the cross examination made by the Learned Counsel for the accused No.2 to 5, this witness deposed that R.T.Nagar P.S is located at a distance of half a kilometre from Kousar Nagar. He denied the suggestion that several cases are registered against him at R.T.Nagar P.S. He deposed that Mohammed Shariff and Aman Ullakhan were the President and the Secretary of the Masjid since 15 years. He admitted that he is not the member or holds any post at the Masjid. He denied the suggestion that the WAKF board had issued directions to Mohammed Shariff and Aman Ullakhan to hand over the responsibility of the Masjid Committee to the accused No.2 and as such Mohammed Shariff and Aman Ullakhan had given responsibility to accused No.2. He denied the suggestion that he has 10 C.C.5523/2018 not mentioned before the doctor that the accused persons assaulted him on his eyes, face and other parts of the body.
16. P.W.2 admitted that the son of owner of the masjid by name Mansoor Ahmed had presented an application so as to not to give the Masjid to the control of private persons to the Wakf board. He deposed that he does not know that the said application was dismissed. For the suggestion that he has not mentioned that the accused persons came to the Masjid and quarreled with him at 2.00P.M is not mentioned in the complaint, P.W.2 deposed that the incident took place at 2.00 P.M, but the police have altered and written down the time of the alleged incident. For the suggestion that the accused persons had come to masjid to take control over it and warned him not to poke his nose, he deposed that he told the police only what he was asked. He deposed that he does not remember the time when police took him for treatment. He deposed that he has not mentioned the time when the police took him for treatment, since the police did not ask him regarding the time he was taken to the hospital. He denied the suggestion that the accused persons have not assaulted him as mentioned in the wound certificate which is at 11 C.C.5523/2018 Ex.P.1. He denied the suggestion that he has foisted a false case against the accused persons and the contents of Ex.P.2 are all false.
17. C.W.4/P.W.3- Irshad Shariff- in his evidence deposed that on 05.11.2017 in between 1.15 P.M and 2.00P.M he had been to the Masjid at Kausar Nagar to perform Namaaz and at that time C.W.1 also had come to the Masjid to perform Namaaz and there was a quarrel and exchange of words took place between the C.W.1, members of the administration board against the accused persons and the accused persons started to assault C.W.1 and the police came there and pacified the galata and accused persons had assaulted C.W.1 on the face and head and all over his body and threatened C.W.1 with dire consequences and he identified the accused persons.
Learned Sr.APP treated this witness as partly hostile witness. In the cross examination made by Learned Sr.APP he deposed that the accused persons threatened C.W.1 with dire consequences if he interfered into the matters of the Masjid.
18. During the cross examination made by the Learned Counsel for the accused persons, this witness deposed that himself and C.W.1 are the residents of the same locality and they are friends. He denied the 12 C.C.5523/2018 suggestion that he had not gone near the masjid on the date of alleged incident and he deposed false in his chief examination. He denied the suggestion that the accused persons have not assaulted the C.W.1 and he is deposing false evidence to help the C.W.1. PW-3 has not fully supported the case of prosecution. However the learned APP treated the witnesses as partly hostile and cross examined him. In the cross-examination the witness has admitted to the suggestion made by the learned APP. Thus, the evidence of PW-3 reveals that he is not certain and he is not able to recollect the incident of the case. Thus, the evidence of PW-3 appears to be doubtful.
19. C.W.3/P.W5- Sayeed Khuram- in his evidence deposed that C.W.1 is his neighbor and he knows the accused persons and on 05.11.2017 while he was at his house somebody told him that galata was going on at the Masjid at Kausar Nagar and he immediately rushed to the Masjid and found that the gate of the Masjid was locked and 05 persons were assaulting C.W.1 and C.W.1 sustained injuries on his eyes, face and all over his body, himself and 4-5 persons took C.W.1 to Poornima hospital for treatment. Further he deposed that when CW..1 was doing Namaaz at the Masjid and the accused persons made galata and he identified the accused persons. 13 C.C.5523/2018
Learned Sr.APP treated this witness as partially hostile witness. In the cross examination made by Learned Sr.APP he admitted that on 06.11.2017 police drew mahazar in front of the masjid and he has signed on the mahazar. He denied the suggestion that the C.W.1 told him that after he finished Namaaz and when he was going home, accused No.2 told him that already case is going on and told C.W1 not to make rules in the Masjid and galata took place in this regard.
20. During the cross examination made by the Learned Counsel for the accused No.2 to 5, this witness deposed that he does not know to read and write Kannada and he admitted that C.W.1 brought him to the Court on that day. He denied the suggestion that he is deposing evidence in the court as tutored by C.W.1. He admitted that he has not mentioned before the police that somebody told him that galata was going on at the Masjid on 05.11.2017. He denied the suggestion that he has not mentioned in his statement before the police that he immediately rushed to the masjid and found that the gate of the masjid was locked and 05 people were assaulting C.W.1, that due to the assault C.W.1 sustained injuries on his face, eyes and hands and that himself and other 4-5 people took C.W.1 to Poornima Hospital for treatment. He denied the suggestion that he signed on Ex.P.3 in the police station and he is seeing the accused 14 C.C.5523/2018 persons for the 1st time at the court and he identified the 04 accused persons only after C.W.1 shown him that they are the accused persons. He denied the suggestion that he is deposing false evidence to help the C.W.1. It is pertinent to note that the witness partially turned hostile to the case of prosecution in the chief examination made by the Learned Sr.APP and the learned Sr.APP treated this witness as partially hostile witness and cross examined him at length. During the cross examination made by the learned Sr.APP this witness admitted to some of the suggestions made by the learned Sr.APP and not admitted to the some of the suggestion made by the learned Sr.APP. The evidence of P.W. 5 is in no way helpful to the case of the prosecution as the witness turned partially hostile in the chief examination and not admitted to the suggestions made by the Learned Sr.APP in the cross examination.
21. C.W.7/P.W.4-Lankarajappa.H.D-Retd.ASI in his evidence deposed that on 05.11.2017 while he was at R.T.Nagar P.S he received a memo from Poornima Hospital and he went to the hospital and found C.W.1 was admitted in the hospital and he was being treated as inpatient and at 3.00 P.M. CW.1 gave a written statement in his presence as per Ex.P.2.
15 C.C.5523/2018
22. During the cross examination made by the learned counsel for accused No.2 to 5 this witness admitted that the doctor has endorsed that the statement of C.W.1 was recorded in his presence on Ex.P.2. He admitted that he orally took permission of the doctor and he has not mentioned about the said fact in Ex.P.2. He admitted the suggestion that there is no mention in Ex.P.2 that the C.W.1 was admitted as in-patient. He admitted that one can reach Poornima hospital from R.T.Nagar P.S.within 3 minutes. He denied the suggestion after recording statement of C.W.1 at Poornima hospital, he has not given the said statement to C.W.8/P.S.I. He denied the suggestion that he has issued endorsement on Ex.P.2 with a view to help C.W.1 at the behest of his superior officer.
23. C.W.6/P.W.1-Dr.Poorneshan Raju in his evidence deposed that on 05.11.2017 at about 2.30P.M, while he was at Poornima Hospital, C.W.1 came to the said hospital with history of assault by 04 persons and on examination of C.W.1 he found the following:
1. A abrasion injury on the left cheek measuring 2x2 cms,
2. There was blood clot inside the left eye and there was bluish color swelling,
3. 03 blood clot swelling on the right side of the back,
4. Swelling measuring 2x 2 cms on the neck,
5. Bluish color swelling wound on the left finger, 16 C.C.5523/2018
6. Swelling on the back of the head measuring 2x 3cms,
24. Further he opined that injury No.1, 3 to 6 were simple in nature and injury No.2 was grievous in nature and he issued wound certificate and opined that the said injuries could be caused if a person is assaulted with hands and kicked and if a person is assaulted with a wooden club near the eyes.
25. During the cross examination made by the Learned Counsel for the accused persons, this witness denied the suggestion that he has not personally examined and treated C.W.1. He admitted that he is deposing evidence at the court based on the contents of Ex.P.1. He admitted that he has not mentioned the identification of CW.1 in the Ex.P.1. He admitted that he has not got any hospital records along with him except the wound certificate of C.W.1. He admitted that it is not mentioned in Ex.P.1 as to which accused and how they assaulted C.W.1. He admitted that there is alteration in the Ex.P.1. He admitted that there is an alteration in Ex.P.1(which is in the court) as to the date and he admitted that there is no alteration in the document/wound certificate brought by him to the Court.
26. On careful perusal of the evidence placed on record, it is evident to note that except the interested witnesses (P.W2, 3 and 5) 17 C.C.5523/2018 the prosecution has not examined any public or other independent witnesses.
27. Now the question which arises before court is whether the evidence placed on record is sufficient to establish the case of the prosecution. The evidence of P.W.2, 3 and 5 who are interested witnesses is to be scrutinized carefully. Further this court observed that the PW 2, 3 and 5 are interested witnesses. Under these circumstances, in the reported decision it is held as under:
" Where the witnesses are interested, their evidence should be scrutinized with great caution"
The law laid down in the said decision is aptly applicable to the case on hand.
28. Further more on the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 -1954 SCR 145, is one of the earliest cases on the point. In that case, it was held as follows:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the 18 C.C.5523/2018 witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
29. Herein this case there is a dispute amongst the C.W.1 and the accused persons regarding management of the Masjid at Kausar Nagar, as such the tendency to drag in the accused persons in a criminal case cannot be ruled out as the C.W.1 has a grudge against the accused persons.
30. Further relying on the decision reported in 1999 Crl.L.J 19 (SC) (Sanspal Singh Vs State of Delhi)
-It is evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether, had there been No public witness available or none was willing to associate here as stated above, public witnesses were available but No 19 C.C.5523/2018 explanation on these lines is forthcoming. Thus it would be unsafe to maintain conviction of the appellant for the offences charged"
The above said decision is aptly applicable to the case on hand.
31. The prosecution failed to secure the presence of other independent witnesses ie., eye witnesses and neighbors to the masjid where the alleged incident took place. Non examination of independent witnesses is fatal to the case of prosecution. Moreover in Ex.P1 wound certificate it is mentioned that the victim was hit by the chair. Whereas nowhere in the complaint it is mentioned about that the assault caused due to hitting by the chair. This material improvisation creates doubt in the mind of the court as to the trust worthiness of the evidence of the C.W.1 and as to whether really the alleged incident took place as per the contention of the C.W.1/complainant. Moreover the doctor/PW1 admitted that there is alteration in the Ex.P.1. He admitted that there is an alteration in Ex.P.1(which is in the court) as to the date and he admitted that there is no alteration in the document/wound certificate brought by him to the Court. Hence it shows that the medical certificate may be issued as per the direction of the complainant for the purpose of filing a criminal case against the accused persons.
20 C.C.5523/2018
32. Furthermore the decision reported in (2017)11 SCC 195- Yogesh Singh Vs Mahabeer Singh and others.. At para 16 Hon'ble Supreme Court observed as under:
"16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted"
The above said decision is aptly applicable to the case on hand.
33. Now on overall perusal of the evidence and prosecution witnesses it is evident to note that the i.e C.W.2 the eye witness, C.W.5 the doctor in whose presence the statement of the complainant has been taken, C.W.8 the IO who has conducted the investigation and filing of charge sheet has not been secured by the prosecution. Non examination of independent witnesses, official witnesses i,e C.W.2, 5 and 8 is fatal to the case of the prosecution. Hence no weightage can be given to the evidence of P.W.2, 3 and 5 and the version of the P.W.2, 3 and 5 makes their evidence not worthy to believe.
21 C.C.5523/2018
34. Repeatedly NBW, proclamation was issued against the C.W.2, 5 and 8. Inspite of giving sufficient opportunities the police official failed to secure C.W.2, 5 and 8. With this view, as per order dated 16-01-2024 prayer of Sr.Asst.Public Prosecutor to re-issue NBW to other witnesses is rejected and examination of C.W.2, 5 and 8 is dropped.
35. Considering the facts and circumstances of the present case, it is clear that the prosecution has failed to prove the guilt of the accused No.2 to 5 beyond all reasonable doubts.
36. For the reasons stated above, it is clear that number of serious doubts arises in the mind of the court as to the evidence and circumstances of the case on hand. Under these circumstances, no doubt the accused No.2 to 5 is entitled for benefit of doubt. Hence this court held that the evidence placed on record is not pointing out towards guilt of the accused No.2 to 5 only and accused No.2 to 5 as a matter of right is entitled for benefit of doubt and prosecution failed to prove the guilt of the accused No.2 to 5 beyond all reasonable doubt. Under these facts and circumstances of the case, the above Points No.1 to 4 is answered in the 'NEGATIVE'. 22 C.C.5523/2018
37. Point No.5: - In view of the findings of Point Nos.1 to 4, this court proceed to pass the following:
ORDER Acting U/Sec.248(1) of Cr.P.C. accused No.2 to 5 are acquitted of the offences punishable U/s.341, 323, 325 and 506 r/w Sec. 149 of IPC.
Bail bonds of the accused No. 2 to 5 shall stand canceled.
Keep the entire records in split up CC.No.
C.C.31401/2022 pending against accused
No.1.
The bail bond executed Sec.437(A) of Cr.P.C., shall be continued.
(Judgment typed to my online dictation by the Stenographer, typed copy corrected and signed by me, then pronounced by me in the Open Court on this the 1st day of April 2024).
(Latha J) XXXII A.C.M.M, Bengaluru.
ANNEXURE List of the Witnesses examined by the Prosecution:
PW-1 Dr. Poorneshan Raju C.W.6 11.09.2023 PW-2 Mohammad Siddiq C.W.1 11.09.2023 PW-3 Irshad Sharif C.W.4 11.09.2023 PW-4 Lankarajappa H.D. C.W.7 16.11.2023 PW-5 Sayyad Kurram C.W.3 16.11.2023 23 C.C.5523/2018 List of the Documents exhibited for the Prosecution:
Ex.P1 : Wound certificate Ex.P1(a) : Signature of PW- 1 Ex.P2 : Complaint Ex.P2(b) : Signature of PW- 4 Ex.P3 : Spot Mahazar Ex.P3(a) : Signature of PW-2 Ex.P3(b) : Signature of PW-5
List of the MOs marked on behalf of the Prosecution
-- NIL --
List of the Witnesses examined for defence:
-Nil--
List of the Documents exhibited for defence:
--Nil--
List of the MOs marked on behalf of Defence:
--Nil--
Digitally signed by LATHA LATHA Date:
J
J 2024.04.02
16:07:25
+0530
XXXII A.C.M.M,
Bengaluru.