Bangalore District Court
State By vs Hyder Ali @ Hyder on 12 September, 2022
KABC010032012017
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 12th day of September 2022.
S.C.No.179/2017
COMPLAINANT : State by
Commercial Street Police,
Bengaluru.
.Vs.
ACCUSED : 1. Hyder Ali @ Hyder.
S/o.Anwar Ali.
2. Syed Naddem @ Kalu,
S/o.Syed Nazeer. (Abated)
3. Saleem Khan @ Saleem @ Bheem,
S/o.Kaleemulla Khan,
4. Imran Khan @ Imran,
S/o.Siraj Khan,
35 years,
R/of.Ashok Nagar,
Bengaluru.
S.C.No.179/2017
2
5. Syed Khizar @ Khizar,
S/o.Syed Hayaz.
6. Ameenuddin Nayeem @ Nayeem,
S/o.Ameenuddin Nawaz.
(The case against accused Nos.1
& 6 was ended in acquittal in
S.C.No.1134/2009)
(The case against accused Nos.3
& 5 was ended in acquittal in
S.C.No.300/2012)
JUDGMENT
The P.S.I., of Commercial Street Police Station, Bengaluru has laid the charge sheet against the accused for the alleged offences punishable under Sections 392, 201, 342 and 364(A) r/w. Section 34 of IPC.
2. The learned Magistrate after complying with the provisions under Section 207 Cr.P.C., has committed the case under Section 209 of Cr.P.C., against the accused No.4 to the Court of Prl. City Civil & Sessions Judge, Bangalore, as the offence under Section 364(A) of IPC is exclusively triable by the Court of Sessions. Thereafter, the case is made over to this court for trial in accordance with law.
3. The brief facts of the prosecution case are as under:
That the accused with common intention to do criminal activity in order to mobilize money, have S.C.No.179/2017 3 stolen Deo Scooter bearing No.KA-05-EY-6237 and changed its number plate as KA-53-E-786. Further, on 12.06.2009 at 6-00 p.m., the accused Nos.1 and 2 were riding the said scooter in front of Palace Talkies, Quadrent Road, within the limits of Commercial Street Police Station, Bengaluru and dashed from behind to the vehicle ALTO Car bearing No.KA-01-ME-8373 driven by C.W.1-Chandrashekar and demanded Rs.20,000/-
from him for repair of the scooter and on his refusal, they have forcefully kidnapped him by threatening with knife and wrongfully detained him and also snatched and robbed Rs.2,000/-, Titan Watch, Credit Card and taken some amount with the aid of credit card and purchased clothes and jewels.
4. On securing the presence of accused No.4, my learned predecessor has framed the charge against the accused No.4 for the alleged offences under Section 364(A), 342, 392 and 201 r/w. Section 34 of IPC. The accused No.4 has pleaded not guilty and claims to be tried. The case is posted for prosecution evidence. C.W.9 and C.W.1 are examined as P.Ws.1 and 2 respectively in this case. Thereafter, the learned Public Prosecutor as well as the learned counsel for accused No.4 have submitted that the evidence recorded in mother case i.e., S.C.No.1134/2009 may be taken into consideration for disposal of this case. In the mother case, the prosecution had examined P.Ws.1 to 10 and S.C.No.179/2017 4 got marked the documents Exs.P.1 to 9 and M.Os.1 to 15 and Exs.D.1 and 2. This evidence is considered in this case as both sides of the proceedings requested to adopt the said evidence. Thereafter, the statement of accused No.4 under Section 313 of Cr.P.C., was recorded. The accused No.4 has denied the incriminating evidence stated against him and has not chosen to adduce defense evidence.
5. Heard.
6. The points raised for determination are as under :
1. Whether the prosecution proves beyond reasonable doubt that the accused with an intend to do criminal activity in order to mobilize money, have stolen the Deo Scooter bearing No.KA-05-EY-6237 and changed the number plate as KA-53-E-
786, further on 12.06.2009 at 6-00 p.m., the accused Nos.1 and 2 were riding the said scooter at Commercial Street Police Station limits, in front of Palace Talkies, Quadrent Road and dashed from behind to the vehicle ALTO Car bearing No.KA-
01-ME-8373 driven by C.W.1-
Chandrashekar, further they have
demanded Rs.20,000/- for repair of the scooter and on refusal, they have forcefully kidnapped him and thereby, committed an offence punishable under Section 364-A r/w. Section 34 of IPC ?
2. Whether the prosecution further proves beyond reasonable doubt that on the alleged date, time and place, the accused No.4 abated accused No.2 have wrongfully confined C.W.1 in order to S.C.No.179/2017 5 meet their demand and thereby, committed an offence punishable under Section 342 r/w. Section 34 of IPC ?
3. Whether the prosecution further proves beyond reasonable doubt that on the alleged date, time and place, the accused No.4 abated accused No.2 having common intention and detained C.W.1, extracted Titan Watch, Credit Card and cash of Rs.2,000/-, further they have drawn Rs.1,000/- from HDFC ATM Card and they have purchased clothes on the basis of credit card and thereby, committed an offence punishable under Section 392 r/w. Section 34 of IPC ?
4. Whether the prosecution further proves beyond reasonable doubt that on the alleged date, time and place, the accused No.4 abated accused No.2 have concealed the evidence by changing the number plate from KA-05-EY-6237 as KA-53-E-786 and thereby, committed an offence punishable under Section 201 r/w. Section 34 of IPC ?
5. What Order ?
7. My findings on the above points are as under :
POINT No.1 - Negative, POINT No.2 - Negative, POINT No.3 - Negative, POINT No.4 - Negative, POINT No.5 - As per final order, for the following :
REASONS
7. POINT Nos.1 to 4 : Since all these points are interconnected to each other, they have been taken up S.C.No.179/2017 6 together for discussion in order to avoid the repetition of facts and evidence.
P.W.1-Sri.Prem Vishnu Narpal-cloth shop owner was examined as P.W.5 in mother case i.e., S.C.No.1134/2009. He turns hostile and he has not deposed the purchase of clothes by the accused. Even he failed to identify the accused. Therefore, his hostile testimony is not in any way assist the prosecution case so as to prove that the accused took the first informant to the cloth shop and on the basis of credit card the accused have purchased the clothes. He has denied the statement given as per Ex.P.6. Therefore, the contradictory and repugnant evidence is hampering the proof of prosecution case.
8. The first informant/P.W.2-Chandrashekar was examined as P.W.1 in mother case S.C.No.1134/2009. He has deposed that on 12.06.2009 at 3-00 p.m., while he was proceeding towards Mysore in a car bearing No.KA-01-ME-8373. At 6-00 p.m., he came near Shivajinagar Evening Bazaar, two persons on two wheelers dashed from behind to his car and they have intentionally done the accident and demanded Rs.20,000/- for repair of the vehicle. On his refusal, those persons have threatened by knife and taken the car key, pouch, credit card and ATM card and took him to the ATM counter on their bike and have drawn the available balance of Rs.1,000/-. On the basis of credit S.C.No.179/2017 7 card, they have forced him to purchase shoes, clothes and taken him to Majestic Shopping Complex. They have also made purchase at Cunningham Sigma Mall. Even they have taken the phone number of his wife and forced her to bring Rs.1,00,000/- and posed threat to kill him. Near OPS Road, the car was stopped. At that time, the police intervened and they tried to ran away. The police apprehended them and brought them to Commercial Street Police Station and the report has been lodged against them.
9. The wife of informant namely Smt.Prapulla was examined as P.W.2 in the mother case. She has deposed the very same facts as to the demand made by the accused posing threat to the life of her husband. It is also deposed that she went with P.W.3 in the mother case. The accused extorted jewels and stated that his name is Tippu. The jewels are identified and marked as M.Os.
The evidence of these witnesses is relating to the incident as to extorting money from ATM Card and mis- use of ATM card. But, the identification of the accused is not properly made out through Identification Parade under Section 9 of Indian Evidence Act. Further, the case registered as to the accident is not forthcoming from the testimony of these witnesses. It is only after drawing the mahazar and arrest of the accused, the S.C.No.179/2017 8 case has been registered. These all circumstances leading to doubt the prosecution case.
10. P.W.3-Smt.Madhura is the sister of first informant had deposed that her sister-in-law has telephoned and informed that her husband was kidnapped by somebody while he was proceeding in a car. Further, the phone threat demanding Rs.1,00,000/- to release her husband also intimated by her sister-in-law/P.W.2 in mother case. Therefore, her evidence is totally an hearsay evidence in nature. As per the directions in phone call, they went to Johnson Market, but somebody were arrived there. According to this witness, they have tried to get release of P.W.1 in mother case and waited for the assailants. Two persons came in Deo vehicle and P.W.2 in mother case given the jewels and Rs.2,000/-. After that, they have fled away, but not released the P.W.1 in mother case. Therefore, the evidence does not in any way inspire confidence to rely upon.
Even in the cross examination. 'D' series documents i.e., Exs.D.1 and 2 marked as to the statement denied by this witness. All these infirmities leading to contradictions and omissions.
11. P.W.4-Sri.V.Krishnamurthy has deposed that he is an Auto Driver and the Commercial Street Police have taken the signature to the mahazar. He has identified S.C.No.179/2017 9 the leather purse, credit card, Titan Watch, knife, Alto Car and cash.
In the cross examination, this witness has admitted that Commercial Street Police have called him as he was parked the auto in the place of "No Entry". They have not imposed any penalty. As such, he went to the Police Station to pay the penalty and attested the mahazar is not evident. The material objects seized by wrapping with cloth and affixing the seal is not testified. It is sated that it was in open condition placed on the table. The police have not issued any written notice to attend as witness.
12. P.W.6-Sri.Issac Prabhakar has deposed that during 2009, he had vehicle Honda Deo bearing No.KA-04-EY- 6237. The same was stolen from his sister's house on 24.05.2009. On 13.06.2009, he came to know the recovery from Commercial Street Police on broadcasting in TV9. He has identified the vehicle in the Police Station and taken the same to the interim custody. It is clear that he has lodged the report before Vyalikaval Police, but he has not enquired about further investigation as to who was having the custody during 24.05.2009 to 13.06.2009 is not clearly made out in the prosecution case with reliable evidence. If at all, the accident was caused with the same vehicle, that would have been recovered on the date of this incident. But, there is delay in recovery.
S.C.No.179/2017 10
13. P.W.7-Sri.Sagay Raj has deposed that during 2009, Commercial Street Police have called him near Palace Theatre and drawn the mahazar in the presence of witnesses as per Ex.P.7. According to him, the police told that there was an accident between the car and two wheeler and there was kidnap case. In that regard, the mahazar was drawn. But, he has not an eye witness to the incident.
In the cross examination, this witness also admitted that the police will not allow his auto to park in front of the shops. As he known to the police, he has attested his signature. Therefore, the interested testimony does not inspire confidence to rely upon the spot mahazar. This witness also not the resident of the locality so as to rely upon Section 100(4) of Cr.P.C.
14. P.W.8-Sri.B.B.Ashok Kumar has deposed that he was A.C.P., and on 12.06.2009, he was patrolling in the jeep. A Maruthi vehicle was going ahead of him in zig zag manner in rash and negligent way. He has stopped the vehicle and surrounded the accused and nabbed the accused. Further, they have released the person P.W.1, who had been allegedly kidnapped by the accused. It is also stated that on enquiry, the scooter was allegedly stolen by them and they have extorted valuables, Watch, ATM Card and purchased clothes and also threatened the wife of P.W.1 to pay the amount for S.C.No.179/2017 11 release of her husband. These aspects are not corroborated with the testimony of independent witnesses, who have witnessed the incident or stated the possession of two wheeler by the accused. The road users at the time of accident are not cited as witnesses. Further more, arrest of the accused and taking possession of the car and rash and negligent driving by the accused is not evident with the cogent reliable authenticated testimony of independent witnesses. The uncorroborated official testimony by itself is not sufficient to hold the accused guilty for the alleged offences.
In the cross examination, it is admitted that he has not mentioned in which way the vehicle was driven by the accused. Even he has not stated who was driven the vehicle at the time of seizure of the vehicle and arrest of the accused. P.W.1 sitting inside the car and who was holding him and detained is not forthcoming. It is also admitted that only one accused has been implicated as accused in the FIR. Therefore, identification of the accused is leading to doubt and is not in any way authenticated with the identification parade conducted under Section 9 of Indian Evidence Act. Therefore, the prosecution has miserably failed to establish the guilt beyond all reasonable doubt.
The bank statement and withdrawal made by the ATM Card in HDFC Bank are not evidenced properly as S.C.No.179/2017 12 it is stated that the CCTV picture captured and it has not been produced in evidence. If those pictures were produced, it would have been depicted the true facts. In the absence of those material evidence, it is difficult to connect the accused in the crime as contended by the prosecution.
15. P.W.9-Sri.Noor Hussain has deposed that the accused No.4 came with P.W.1 in mother case i.e., S.C.No.1134/2009 and purchased the clothes. He has identified the accused No.4 in the court.
In the cross examination, this witness has admitted that he could not able to identify all the customers, who are purchased the clothes. The police have not given written intimation so as to identify the accused. He has not identified the accused in the Police Station. Therefore, his testimony is not in any way consistent so as to rely upon.
16. P.W.10-Sri.Badrinath, the then P.I., of Commercial Street Police Station, Bengaluru has deposed that he has given a requisition for particulars of HDFC Bank and City Bank and obtained Exs.P.8 and 9. As already discussed, the CCTV footage and pictures captured are not produced in evidence so as to prove the presence of accused, who have coerced P.W.1 to draw the amount. The materials placed on record by the prosecution are not against the accused No.4.
S.C.No.179/2017 13 Therefore, the benefit of doubt is confers in favour of the accused. The prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, I answer the Point Nos.1 to 4 in the Negative.
17. POINT No.5 : In view of my findings on Point Nos.1 to 4 as above, I proceed to pass the following :
ORDER Acting under Section 235(1) of Cr.P.C., accused No.4 is acquitted for the alleged offences punishable under Sections 364(A), 342, 392 and 201 r/w. Section 34 of IPC.
The bail bond and surety bond of the accused No.4 stand cancelled.
The interim custody of M.Os.8 to 12 given to P.W.2 in mother case i.e., S.C.No.1134/2009 is made absolute.
M.Os.1 to 7 and 13 to 15 being worthless, are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment-writer on computer, corrected, signed and then pronounced by me in the open court on this the 12th day of September 2022) (KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
S.C.No.179/2017 14 ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 (P.W.2) Chandrashekar P.W.2 Prapulla P.W.3 Madhu P.W.4 V.Krishnamurthy P.W.5 (P.W.1) Prem Nagpal P.W.6 Issac Prabhakar P.W.7 Sagairaj P.W.8 B.B.Ashok Kumar P.W.9 Noor Hussain P.W.10 Badrinath
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a) Signature of P.W.1
Ex.P.2 Xerox copy of credit card
Ex.P.3 Xerox copy of City Bank Credit Card
Ex.P.4 Xerox copy of credit card
Ex.P.5 Seizure Mahazar
Ex.P.5(a) Signature of P.W.3
Ex.P.5(b) Signature of P.W.4
Ex.P.6 Statement of P.W.5 (relevant portion)
Ex.P.7 Spot Mahazar
Ex.P.7(a) Signature of P.W.7
Ex.P.8 Documents pertaining to City Bank
Ex.P.8(a) Signature of P.W.10
Ex.P.9 Credit card details of the complainant
Ex.P.9(a) Signature of P.W.10
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
M.O.1 Jeans pants (5 Nos.)
M.O.2 Jeans Pant
M.O.3 T-shirts (2 Nos.)
M.O.4 T-shirt
S.C.No.179/2017
15
M.O.5 T-shirt
M.O.6 T-Shirt
M.O.7 T-Shirt
M.O.8 Two gold bangles
M.O.9 One pair of ear rings
M.O.10 Gold mangalya chain with black bids
M.O.11 Gold Ring
M.O.12 Rold-gold chain
M.O.13 Leather Purse
M.O.14 Knife
M.O.15 Knife
4. LIST OF WITNESSES EXAMINED FOR ACCUSED :
- NIL -
5. LIST OF DOCUMENTS EXHIBITED FOR ACCUSED :
Ex.D.1 Relevant portion of statement of P.W.3 Ex.D.2 Relevant portion of statement of P.W.3 (KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.