Bangalore District Court
The State Of Karnataka vs No.1: Thanveer Pasha @ Thanu on 29 January, 2022
1 Spl.CC.No.255/2018
IN THE COURT OF THE L ADDL.CITY CIVIL & SESSIONS
JUDGE SITTING AT CHIDREN'S COURT, BENGALURU.
Dated this 29th day of January, 2022
- : PRESENT: -
Smt. B.K. KOMALA, B.A.L., LL.M.
L Additional City Civil & Sessions Judge,
Sitting at Children's Court, Bengaluru.
Spl. C.C.No.255/2018
COMPLAINANT: The State of Karnataka
By Chandra Layout Police Station,
Bengaluru.
[Rep. by Public Prosecutor)
/ VERSUS /
ACCUSED No.1: Thanveer Pasha @ Thanu
S/o.Fayaz Pasha @ Tippu,
Aged about 33 years, r/at.
Above Muthurayana Bande,
Near Mecca Maszid, 10th Cross,
Gangondana halli, Bengaluru.
(Rep. Sri.R.P.R, Adv.]
2 Spl.CC.No.255/2018
1 Date of Commission of offence 30.09.2016
2 Date of report of occurrence 30.09.2016
3 Date of arrest of Accused 09.04.2017
Date of release of Accused 19.07.2019
Period undergone in custody 2 Years 3 Months and
by accused 10 days
4 Date of commencement of 07.01.2019
evidence
6 Date of closing of evidence 13.09.2021
7 Name of the complainant Prathima
8 Offences complained of Under Sec.397 IPC
9 Opinion of the Judge Accused is found not guilty
JUDGMENT
This is charge a sheet filed by Chandra Layout Police against the accused for an offence punishable under Section 397 R/W. Sec.34 IPC.
2. The brief facts of the prosecution case are that on 30.9.2016 between 8.00 p.m. and 9.00 p.m. the accused along with another accused entered into the house of CW.1 3 Spl.CC.No.255/2018 and attempted to commit theft of T.V. by threatening and causing injury to CW.2 with a Knife, who was in the house.
3. As per the complaint given by CW.1 case in Crime No.289/2016 was registered for an offence u/s.397 IPC and after completion of investigation the above charge sheet was filed before Jurisdictional Magistrate. After taking cognizance and after securing the present accused case has been split up against accused No.2 and registered as CC.No.6311/2018 before the Court of VIII Addl.CMM, Bengaluru. The case against accused No.1 case was committed to this Court.
4. After taking cognizance, case was registered and accused has been enlarged on bail. After complying with Section 226 Cr.PC charges were framed and read over to accused. Accused pleaded not guilty and claimed to be tried.
5. In support of the prosecution case, 7 witnesses have been examined as PW.1 to PW.7. 7 documents have been marked as Ex.P1 to Ex.P7. MO.1 to MO.3 have been 4 Spl.CC.No.255/2018 marked. The statement of the accused under Sec.313 Cr.P.C has been recorded. The accused has denied the incriminating evidence. The accused has not led any oral or documentary evidence.
6. Heard the arguments. Perused the records.
7. From the materials placed before the court, following points arise for my consideration:
1. Whether the prosecution has proved beyond reasonable doubt that on 30.9.2016 between 8.00 p.m. to 9.00 p.m. in the house of CW.1 situated at 2nd Stage, Binny Layout, Bengaluru, the accused attempted to commit theft of T.V. and caused hurt to CW.2 by using Knife and thereby committed an offence punishable under Sec. 397 IPC?
2. What order ?
8. After the close scrutiny of the entire oral and documentary evidence and after hearing the arguments my finding to the above points are as follows: 5 Spl.CC.No.255/2018
Point No.1 : In the Negative
Point No.2 : As per the final order for the following:
REASONS
9. Point No.1: The prosecution has alleged an offence against the accused in the above case u/s.397 IPC, which reads as below:
"397.Robbery or dacoity, with attempt to cause death or grievous hurt.-If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years".
10. Therefore the prosecution must prove the following ingredients:
6 Spl.CC.No.255/2018
1. The accused herein:
(a). Committed robbery or dacoity
(b). The accused used a deadly weapon or caused grievous hurt or attempted to cause death or grievous hurt
(c). That the above acts were done during the commission of robbery or dacoity.
11. In the case on hand it is the contention of the prosecution that on 30.9.2016 the present accused along with another accused having entered into the house of CW.1 attempted to commit theft of T.V. and when CW.2 came to the hall from the room, where the accused were attempting to commit theft of T.V, she was caused injury with a knife and was also put life threat.
4. Therefore, it is the definition of robbery that has to be looked into in this case. Sec.390 IPC deals with the offence of robbery. When theft amounts to robbery has been dealt as below:
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"Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint".
5. Therefore, in the case on hand the prosecution must prove the ingredients contemplated u/s.390 IPC and also the ingredients u/s.397 IPC. In this regard the prosecution has examined the informant as PW.1. Ex.P1 is the complaint on the basis of which the present case has been registered. In Ex.P1 it is stated that on 30.9.2016 between 8.00 to 9.00 p.m. when her daughter CW.2 was alone in the house, two persons had entered the hall of the house and attempted to lift T.V and one among them holding a knife came near her and caused injury on her left side of chest and left arm, as a result of which her clothes 8 Spl.CC.No.255/2018 were torn. It is further stated that they also threatened her daughter that if she disclosed the same to anybody they would cause her death and they ran away from the spot by leaving the T.V there itself. It is specifically stated that those two persons were unidentified persons. The complaint has been presented on 30.9.2016 at 11.00 p.m.
6. The complainant has been examined as PW.1. PW.1 has deposed that her daughter informed that two persons, who had entered the hall, were attempting to lift T.V and when she screamed both of them by showing knife threatened her. She has further deposed that they also caused abrasion on her left arm and left thigh by same knife. She identified a T-Shirt and a Pant as the clothes worn by CW.2 at the time of incident. She has further deposed that her daughter informed that those unidentified persons were aged about 25 years. During cross-examination she has admitted that it was not found that the door had been opened forcibly. She has admitted that in the complaint she 9 Spl.CC.No.255/2018 has not given details of the said unidentified persons like their age, appearance, colour etc.,
7. CW.2/PW.3 is the daughter of the complainant and the sole eye witness and injured to the incident. She has deposed that during September 2016 at about 8.00 p.m. when she was alone in her house two persons asked her whether Chandra Shekar was in the house and she answered that he was not there and sometime later when she came out from room by hearing some sound in hall, she saw that a person was in the hall, who dragged her and another person was lifting Samsung T.V. She has further deposed that the person, who had dragged her and holding her, by showing Knife threatened her and also caused bleeding injury on her left arm and left thigh. She has further deposed that when she screamed, she heard some sound from near the window and some person seemed to came near window and looking at that the accused leaving T.V and making life threat went away from the spot. She has further 10 Spl.CC.No.255/2018 deposed that after she informed the same to her parents, who were in Bakery and they gave complaint, the police had come to the spot along with finger print experts. She has further deposed that she was taken to Gurushri hospital for treatment. She has deposed that those persons were aged 25 to 30 years and she can identify them and also the knife used by the said persons. She identified MO.1 and MO.2 as the T.Shirt and Pant worn by her at the time of incident. During cross-examination she has deposed that at the first instance when those persons enquired about Chandra Shekhar she gave answer without opening the door or the window. She has further deposed that when she came out from the room two persons were in the hall and the door was opened. She has further deposed that she could not make out whether the door was opened forcibly or those persons entered the house by breaking the window glass. She has further deposed that after those two persons ran away she locked the door and went to Bakery to inform her parents, but she did not observe whether door had been opened 11 Spl.CC.No.255/2018 forcibly. She has further admitted in cross-examination that she was not called to police station for identification of any person, but she was shown a photo.
8. PW.2 is cited as an attesting witness to mahazar dt:30.9.2016 drawn in the house of PW.1. He has deposed that in the house of PW.1 mahazar was conducted in his presence and MO.1 and MO.2 were seized. He has deposed in cross-examination that at the time of mahazar finger print experts and dog squad were also present.
9. PW.4 is the Investigating Officer, who has registered the case. He has deposed that on 9.4.2017 accused No.1 and 2 of this case were arrested in Crime No.163/2017 and on 15.4.2017 they were taken to police custody. He has further deposed that he has recorded further statement of CW.2 for having identified the accused on 13.4.2017. He identified Ex.P4 as the wound certificate of CW.2.
12 Spl.CC.No.255/2018
10. PW.5 and PW.7 are A.S.I and H.C, who apprehended three accused on 9.4.2017 at about 6.00 p.m. in Tekal of Kolar along with a bike and produced them before Investigating Officer. He has deposed that they apprehended the accused Thanveer, Johar and Saif Ali.
11. PW.6 is the Investigating Officer, who has conducted further investigation and filed charge sheet. He has deposed that on 1.10.2016 he visited the place of incident and seized a T-Shirt and a Pant in the presence of CW.3 and CW.4 and recorded statements of Somashekar, CW.2, Basava Raju, Hema, Vijaya Sheshan, Sathish and Vinay Prabhakar. He has further deposed that on 2.10.2016 he verified CCTV footage, but did not get any useful information. He has further deposed that on 9.4.2017 three persons namely, Thanveer Pasha, Saif Ali Khan and Johar were produced before him in Crime No.163/2017. He has further deposed that a plastic knife, a Bajaj Pulsor Motor Bike bearing registration No.KA-05-HR-9856 and Rs.1,500/- 13 Spl.CC.No.255/2018 cash were seized from Thanveer Pasha. Another plastic knife and Rs.1,800/- were seized from Saif Ali Khan. He further deposed that Rs.1,700/- cash, one iron rod and a knife were seized from Johar. He has also deposed that he recorded the voluntarily statements of accused. He identified MO.3 as the Knife, seized from the possession of accused, Thanveer Pasha and that it pertains to the present case. He has further deposed that on the same day i.e., 9.4.2017 he filed charge sheet. He has admitted in cross- examination that he has not taken opinion of finger print expert. He has further deposed that he had not taken dog squad to the place of incident.
12. As stated above Ex.P1 is the complaint. Ex.P2 is the mahazar dt:30.9.2016 drawn between 11.50 p.m. to 00.45 a.m. Ex.P3 is the F.I.R, Ex.P4 is the Wound Certificate, Ex.P5 is the Report given by PW.5, Ex.P6 is the draft sketch of place of incident and Ex.P7 is the mahazar dt:9.4.2017.
14 Spl.CC.No.255/2018
13. From the above oral and documentary evidence it is seen that as regards identity of accused admittedly accused were unknown persons to CW.2. Therefore, identification becomes very material. Admittedly, no Test Identification Parade has been conducted. Even according to Investigating Officer i.e., PW.6, the present accused was apprehended in another case in Crime No.163/2017 on9.4.2017. The present date of incident is 30.9.2016. Therefore, after a period of about 7 months the accused have been apprehended that too in another case.
14. According to prosecution on the basis of voluntary statement of the accused in Crime No.163/2017 they have been taken to custody under body warrant and got identified by CW.2. According to PW.6 a further statement of CW.2 was recorded with regard to identification of accused. It is very important to note that on 9.4.2017 accused have been apprehended and arrested in Crime No.163/2017. PW.6 has deposed that on 9.4.2017 15 Spl.CC.No.255/2018 he has filed charge sheet. But he has further stated that he recorded further statement of CW.2 with regard to identification of accused on 13.4.2017. CW.2 on the other hand has categorically deposed that she never visited the Police Station and she did not identify the accused in Police Station at any point of time. She further says that only photograph was shown to her. Further statement dt:13.4.2017 has been produced along with charge sheet. It has been recorded by C.Ravi Kumar i.e., PW.4. According to PW.4 after recording the statement of CW.2 he handed over the file to CW.12/PW.6 for further investigation. Therefore, as regards recording of further statement for proof of identification of accused, there are serious inconsistencies and contradictions which create doubt about the very recording of statement and identification of accused by CW.2, who is the sole eye witness to the incident.
16 Spl.CC.No.255/2018
15. Even before the court, prosecution has not made any effort to get identification of the accused through CW.2, who has been examined as PW.3. Order sheet makes out that on 29.7.2019 when CW.2/PW.3 was examined, accused was absent and his counsel had filed Exemption Application. But it is pertinent to note that in the incident two persons have participated. The present case has been tried against accused Thanveer Pasha only. According to CW.2/PW.3 one among the two persons showed her a knife, caused hurt to her and threatened her and another person was lifting T.V. Therefore, the identification of the accused separately and specifically would be very much necessary to link the accused to the present case. Therefore, in this case only because the counsel for accused has filed Exemption Application on the date of examination of CW.2/PW.3, it cannot be said that the prosecution is absolved from proving the identity of the accused and to link the accused to the present case. 17 Spl.CC.No.255/2018
16. It is also pertinent to note that according to the prosecution on the basis of the voluntary statements of the accused recorded in Crime No.163/2017 they were found to be involved in the present case also. Therefore, voluntary statements of the accused also are very material in this case. No doubt, a voluntarily statement recorded by the Investigating Officer is hit by Section 25 and 26 of Evidence Act and can be admitted only to the extent as permissible u/s.27 of Evidence Act. From reading the copies of voluntary statement produced in this case it is noticed that in Para-2 of the statement of present accused and Para shown as 1 in the voluntary statement of accused No.2- Saif Ali Khan, there is a reference to the alleged present incident. In the said statements it is stated that the knife used for assaulting CW.2/PW.3 was produced before police at the time of search of their person. The same sentence is found in the voluntary statement of both Thanveer Pasha and Saif Ali Khan.
18 Spl.CC.No.255/2018
17. Further, in the further statement of CW.2 it is stated that she identified item No.2 and 4 of PF.No.61/2017 as the knives used by accused for commission of offence in this case. But according to PW.6 and so also the oral evidence of CW.2/PW.3 only one knife was used for commission of offence in this case. PW.6 has identified MO.3 as the knife pertaining to this case. But no identification marks could be found out as to on what basis the said knife was identified as the one pertaining to this case. Further, it is pertinent to note that the said knife has not been got identified through CW.2/PW.3, injured. The said MO.3 has not been seized as contemplated u/s.27 of Evidence Act. Therefore, the prosecution has also failed to link MO.3 to the present case and also that the accused is involved in this case is proved in pursuance of his voluntary statement or through identification by the injured/victim. Therefore, in this case identification of accused itself has not been proved.
19 Spl.CC.No.255/2018
18. As discussed above, the prosecution has also failed to relate MO.3 to the present case. Further, no opinion of either the Doctor or Expert of FSL has been obtained to prove that the injuries mentioned in Ex.P4 could be caused by MO.3 or that the tearing found in MO.1 and MO.2 could be caused by MO.3. Therefore, mere production of MO.3, MO.1 and MO.2 or FSL Report has not helped the prosecution to link MO.3 to the present case. MO.3 is a knife with plastic handle. But PW.6 has deposed that a plastic knife has been seized. There is difference between a plastic knife and metal knife, a knife with plastic handle.
19. Section 397 IPC specifically mandates that in the commission of offence of robbery or dacoity the accused must have caused grievous hurt to any person or an attempt to cause death or grievous hurt to any person. In the case on hand, it is the specific contention of the prosecution that the accused caused injury to CW.2/PW.3 20 Spl.CC.No.255/2018 with the knife i.e., MO.3. Ex.P4, which is the wound certificate states that only simple injuries were found on left arm measuring 5 x 0.5 CM and left thigh measuring 7 x 0.5 CM. The shape of injuries are not mentioned. It is stated that only a superficial abrasion was found. According to Ex.P1 i.e., complaint, which has come into existence immediately after the incident CW.2/PW.3 had sustained injury on the left side of her chest and left arm. Therefore, the injuries as mentioned in Ex.P1 do not tally with that mentioned in Ex.P4. Further PW.1 in her chief-examination has changed the version and has deposed that PW.2 had sustained injury on her left arm and left thigh.
20. Further, MO.1 and MO.2 are produced as the T-Shirt and night Pant worn by the injured at the time of incident and which were torn/cut at the time of incident due to assault by the accused with knife. According to the prosecution CW.2 had worn MO.1 and MO.2 at the time fo incident and the accused since assaulted injured/CW.2 with 21 Spl.CC.No.255/2018 knife i.e., MO.3, MO.1 and MO.2 were torn. But from perusal of MO.1 and MO.2 and as stated in the mahazar under which MO.1 and MO.2 are said to have been seized, it is seen that T-Shirt has been torn on left side near chest and not on left sleeve/arm. Further, the measurement of injuries as shown in Ex.P4 do not correspond to the torn portion of MO.1 and MO.2 and so also the shape. During cross-examination PW.2 has deposed that after the incident, wearing the same dress and a coat upon it she went out and the jacket worn by her at the time of incident was covering her thigh also.
21. Further according to PW.2 and PW.3 and also recitals of Ex.P2, MO.1 and MO.2 were seized at the time of mahazar on 30.9.2016 drawn in the house of PW.1. But PW.1 has admitted in her cross-examination that she herself handed over MO.1 and MO.2 to police in police station. PW.6 has deposed that on 1.10.2016, he conducted mahazar and seized MO.1 and MO.2, which 22 Spl.CC.No.255/2018 were produced by the injured. Therefore, the oral evidence adduced by the prosecution is quite contrary to the documentary evidence and the properties produced by it. Hence, the prosecution has also failed to prove that PW.3/CW.2 was caused grievous hurt at the time of incident either in law or on facts.
22. As stated above it is pre-requiste to prove the commission of offence of robbery to attract Sec.397 IPC. As stated above, to prove the offence of robbery, as contended in this case the prosecution must prove that there was theft or an attempt to commit theft of immovable property. Though it is contended that the accused attempted to commit theft of T.V. the said article has not been recovered. Secondly in the mahazar also there is no recital that there was any mark of attempt to commit theft. Whereas PW.1 has deposed that as she observed there was no mark or sign that the door had been opened forcibly, PW.3 has deposed that she did not observe 23 Spl.CC.No.255/2018 whether the accused had entered the house by break opening the door or by break opening window glass, which seems to be highly unbelievable and un-natural. Therefore, the recitals of spot mahazar would be very material in this regard. But as stated above, even the mahazar is silent on this aspect. Hence, the prosecution has failed to prove that there was an attempt to commit theft as is to be proved u/s.390 IPC. Therefore, none of the ingredients of Sec.397 IPC have been proved by the prosecution beyond reasonable doubt. The prosecution has failed to link the accused to the present case and also MO.1 to MO.3 to the present case. Such being the case, it is to be held that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Under such circumstances, the accused would be entitled for benefit of doubt. Hence, I am constrained to answer point No.1 in the negative.
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23. Point No.2: In the result I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., accused is acquitted for the offence punishable under Section 397 IPC.
The bail bond and surety bond of the present accused shall stand cancelled.
M.O.1 and M.O.2 shall be preserved till the disposal of the split up case. M.O.3 shall be returned to CCH-60 for trial in SC.No.213/2018.
*** (Dictated to the Judgment Writer, transcribed by her, transcript corrected, signed and then pronounced by me in open court on 29th day of January 2022.
(B.K. KOMALA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.25 Spl.CC.No.255/2018
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.1/CW.1 Prathima P.W.2/CW.4 Rakesh P.W.3/CW.2 Chandana P.W.4/CW.11 C.Ravi Kumar P.W.5/CW.10 B.E.Kale Gowda P.W.6/CW.12 S.R.Veerendra Prasad P.W.7/CW.9 Khaja Ajmeer LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P1(a) Signature of PW.1 Ex.P1(b) Signature of PW.4 Ex.P.2 Spot mahazar Ex.P2(a) Signature of PW.1 Ex.P2(b)&(c) Signatures of PW.2 Ex.P2(d) Signature of witness Ex.P.3 F.I.R Ex.P.3(a) Signature of PW.4 Ex.P.4 Wound Certificate Ex.P4(a) Signature of PW.4 Ex.P.5 Report Ex.P.6 Sketch Ex.P6(a) Signature of witness Ex.P.7 Seizure Mahazar Ex.P.7(a) Signature of PW.7 26 Spl.CC.No.255/2018 LIST OF MATERIAL OBJECTS MARKED MO.1 Green T-Shirt MO.2 Green Night Pant MO.1(a) & Signatures of PW.2 MO.2(a) MO.3 Knife LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:
-Nil-
LIST OF WITNESSES EXAMINED & M.OS MARKED ON BEHALF OF DEFENCE
-Nil-
(B.K. KOMALA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU. 27 Spl.CC.No.255/2018 JUDGMENT PRONOUNCED IN OPEN COURT (Vide separate judgment) ORDER Acting under Section 235(1) of Cr.P.C., accused is acquitted for the offence punishable under Section 397 IPC.
The bail bond and surety bond of the present accused shall stand cancelled.
M.O.1 and M.O.2 shall be preserved till the disposal of the split up case. M.O.3 shall be returned to CCH-60 for trial in SC.No.213/2018.
(B.K. KOMALA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU. 28 Spl.CC.No.255/2018