Bangalore District Court
State By Banashankari Police vs Afsar Khan @ Afi on 1 February, 2021
1
S.C.No.435/2013
&
S.C.No.279/2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 1st day of February, 2021
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.435/2013
&
SESSIONS CASE NO.279/2019
IN SESSIONS CASE NO.435/2013:
COMPLAINANT : State by Banashankari Police
Station, Bengaluru.
-Vs-
ACCUSED 1. Afsar Khan @ Afi,
S/o.Riyaz Ullakhan,
Aged about 26 years,
R/at. No.2, 2nd Cross,
9th Main Road, Yarab Nagar,
Banashankari 2nd Stage,
Bengaluru.
3. Ayaz Ahammed,
S/o.Shabbeer Ahammed,
Aged about 28 years,
R/at.No.16, 1087,
BTM 2nd Stage,
Bengaluru.
4. Afroz Khan @ Afroz,
S/o.Sheik Jahir,
2
S.C.No.435/2013
&
S.C.No.279/2019
Aged about 31 years,
R/at. No.193, Behind Masjid,
Yarab Nagar,
Bengaluru.
5. Syed Najim Uddin @ Najim,
S/o.Sirazuddhin,
Aged about 27 years,
R/at. 12, 10th Cross,
Kanakanagar,
R.T.Nagar Main,
Bengaluru.
8. Kousar Khan @ Kousar,
S/o.Riyaz Khan,
Aged about 34 years,
R/at.No.2, 2nd Cross,
Yarab Nagar,
Banashankari 2nd Stage,
Bengaluru.
9. Jahir @ Kalu,
S/o.Mohammed Feer,
Aged about 30 years,
R/at.No.55, 1st Cross,
1st Main, Beside Kannada
High School, J.J.Nagar,
Bengaluru.
2. Akram Pasha,
Split up on 18.1.2020.
3
S.C.No.435/2013
&
S.C.No.279/2019
IN SESSIONS CASE NO.279/2019:
COMPLAINANT : State by Banashankari
Police Station,
Bengaluru.
-Vs-
ACCUSED 6. Nawaz Khan,
S/o. Jiyaulla Khan,
Aged about 36 years,
R/at.No.107, 17th Main,
17th Cross, Adugodi,
Bengaluru.
7. Vaseem Khan,
S/o.Kaleem Khan,
Aged about 24 years,
R/at.No.115, 3rd Cross,
Sadhik Layout,
Ashoka Nagar,
Bengaluru.
1. Date of commission of offence : 20.12.2012
2. Date of report of offence : 20.12.2012
3. Date of arrest of the Accused : 20.12.2012
4. Name of the complainant : Sri. Muralidhar P.
5. Date of recording evidence : 23.11.2018
6. Date of closing evidence : 17.9.2019
7. Offences complained of : U/Sec.143, 144,
147, 148, 399, 402,
307, 353 R/w.Section.
149 of IPC.
4
S.C.No.435/2013
&
S.C.No.279/2019
8. Opinion of the Judge : Accused
No.1, 3 to 9 are
convicted
U/s.235(2) of Cr.P.C.
for offence
punishable U/Sec.143,
144, 147, 148, 353,332
R/w.Sec. 149 of IPC.
Accused
No.1, 3 to 9 are
acquitted
U/s.235(1) of Cr.P.C.
for offence
punishable U/Sec.307,
399, 402 of IPC.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. A.N.P. Adv. for
A.1,3, 4 and 5
Sri. U.T.K., Adv.
For A.2 and 8.
Sri.T.S. Adv. For A.9,
JUDGMENT
Police Sub-Inspector of Banashankari police station, Bengaluru submitted charge sheet against accused No.1 to 9 for offences punishable U/s.143, 144, 147, 148, 399, 402, 307, 353 R/w.Section 149 of I.P.C., in Cr.No.367/2012.
5
S.C.No.435/2013 & S.C.No.279/2019
2. Brief facts of prosecution case is as under; On 20.12.2012 evening at 4.30 p.m., accused No.1 to 9 formed an unlawful assembly, armed with deadly weapons with common object to murder brothers of Diwan Ali and main witnesses in the murder case of Diwan Ali. On the basis of credible information, complainant along with police staff conducted raid to arrest accused persons. Accused persons attacked on police squad with deadly weapons. Accused No.1 made an attempt to murder Cw.4/ T.M.Dharmendra, P.S.I. All accused persons caused obstruction to prevent their arrest. On the basis of the information by way of report submitted by Cw.1, a case for offences punishable U/s.143, 144, 147, 148, 399, 402, 307, 353 R/w.Section 149 of I.P.C., was registered against the accused persons.
3. Taking the case for investigation, Investigating Officer has send F.I.R., to the jurisdictional court, entered seized weapons in property form, reported the same to the jurisdictional court interrogated the accused persons, recorded their voluntary statements. Further, 6 S.C.No.435/2013 & S.C.No.279/2019 Investigation Officer recorded statements of the witnesses, police staff as per Section 161 and 162 of Cr.P.C., collected wound certificate from the hospital. After the investigation, Investigating Officer has filed charge sheet before III-A.C.M.M., Bengaluru. Learned magistrate took cognizance of the alleged offences against the accused persons and registered a criminal case in C.C.No.3271/2013. Since the alleged offences are exclusively triable by the court of sessions, learned Magistrate has committed the case to the court of Sessions for trial U/s. 209 of Cr.P.C. After committal, case is re-registered as S.C.No.435/2013.
4. After committal of the case, despite issuance of N.B.W. accused No.6 and 7 not traced out. Hence, case against them is ordered to be split up and registered separate case in S.C.279/2019.
5. After hearing, on 6.10.2018 charges against accused No.1 to 5, 8 and 9 framed in S.C.No.435/2013, which they denied and claims to be tried. 7
S.C.No.435/2013 & S.C.No.279/2019 5.1) Matter was posted for opening case for prosecution as per Section 226 of Cr.P.C.
6. During the course of trial, accused No.6 and 7 traced out in split up S.C.No.279/2019. After hearing, on 23.3.2019 charges against accused No.6 and 7 was framed in S.C.No.279/2019, which they denied and claims to be tried. As both S.C.435/2013 and S.C.No.279/2019 are arising out of same Cr.No.367/2012, both the cases are tried together.
7. To prove ingredients of the offences charged against the accused, prosecution examined Pw.1 to Pw.13 and got exhibited 27 documents at Ex.P.1 to Ex.P.27 and got identified material objects at Mo.1 to Mo.9.
8. On completion of the evidence of prosecution side, all incriminating circumstances, available in the evidence of the prosecution were explained to the accused No.1 to 9, as required U/s.313 of Cr.P.C., and 8 S.C.No.435/2013 & S.C.No.279/2019 recorded their statements. Accused No.1 to 9 denied all incriminating circumstances, evidence found in the prosecution side evidence. Accused have not produced any documents, materials on their behalf. Further no defence evidence was led by the accused side.
9. On 18.1.2020 accused No.2 was ordered to be split up from this case, as accused No.2 remained absent to face trial.
10. Heard both side.
11. Now, following are points arising for determination:
1. Whether prosecution proves beyond reasonable doubt that, on 20.12.2012 at 4.30 p.m., behind Urdu school, Yarab Nagar, Bengaluru city accused No.1, 3 to 9 along with absconding accused No.2 with an intention to commit offence against brothers of Diwan Ali and main witnesses, formed an unlawful assembly armed with deadly weapons committed riot thereby accused No.1, 3 to 9 along with absconding accused No.2 committed offences punishable U/s.143, 9 S.C.No.435/2013 & S.C.No.279/2019 144, 147, 148 R/w.Sec.149 of I.P.C. as alleged in the charge sheet?
2. Whether prosecution proves beyond reasonable doubt that, on the same date, time and place, accused No.1, 3 to 9 along with absconding accused No.2 being members of unlawful assembly in furtherence of the common object of the unlawful assembly by making preparation to commit dacoity i.e. rob passers by holding deadly weapons like knife, longs, dragger, sickle, chilli powder thereby committed offence punishable U/s.399 and 402 R/w.Sec.149 of I.P.C., as alleged in the charge sheet?
3. Whether prosecution proves beyond reasonable doubt that, on the same date, time and place accused No.1, 3 to 9 along with absconding accused No.2 being members of unlawful assembly in furtherence of the common object of the unlawful assembly assaulted Cw.5 to 11 public servants to prevent them from discharge of their duties thereby committed an offence punishable U/s.353 R/w.Sec.149 of I.P.C., as alleged in the charge sheet?10
S.C.No.435/2013 & S.C.No.279/2019
4. Whether prosecution proves beyond reasonable doubt that, on the same date, time and place, accused No.1 in furtherence of the common object of their unlawful assembly, attacked Cw.4/ T.M.Dharmendra attempted to commit murder and thereby committed an offence punishable U/s.307 R/w.Sec.149 of I.P.C., as alleged in the charge sheet?
5. What Order ?
12. It is answered to the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : In the Affirmative
Point No.4 : Partly in the Affirmative
Point No.5 : As per final order
for the following:
REASONS
13. POINTS NO.1 to 4:- These points are taken together to avoid repeated discussions. What prosecution 11 S.C.No.435/2013 & S.C.No.279/2019 required to be proved is formation of unlawful assembly armed with deadly weapons by the accused persons and causing obstruction to police officers by using criminal force in order to deter them from discharge of their official duty.
14. Police officers, medical officer and Investigation Officers deposed in support of the case of the prosecution. Evidence adduced by police witnesses cannot be doubted only on the ground that they are serving in the department of police and the case is filed by the police on behalf of State. Scrutiny of evidence of those witnesses is necessary by considering admissions elicited in their cross-examination. Before arriving for conclusion on the point whether prosecution proved ingredients of offences charged against accused persons, it is just and necessary to assess evidence adduced by each witness.
15. Pw.1/Cw.1/P.Muralidhara is the then Police Inspector of Banashankari police station. In his evidence 12 S.C.No.435/2013 & S.C.No.279/2019 Pw.1 deposed that on 20.12.2012 hearing of Diwan Ali murder case was posted before the court of FTC-10, Bengaluru. As there was information about preparation for commission of murder of brothers of Diwan Ali and witnesses in the murder case of Diwan Ali, he sent his staff to Yarab Nagar and he himself was on beat. Evening at 8.15 p.m., he received credible information that accused persons in Diwan Ali murder case were attempting to commit dacoity, murder and threatening witnesses at Yarab Nagar by sitting in 2 Scorpio vehicles. Summoning two panch witnesses along with Sub- Inpsector and staff, he went to the spot. On inspection, he came to know that 9 persons were attempting to commit robbery by making gesture. On seeing them all of them had taken out dragger, sickles, button knives, chilli powder, kept inside the Scorpio vehicles. One of them made an attempt to murder Cw.4/T.M.Dharmendra P.S.I. by causing assault on the neck by using deadly weapon "long". Cw.4/Dharmendra P.S.I. succeeded to escape from the said attempt, but fell down and 13 S.C.No.435/2013 & S.C.No.279/2019 sustained injury. Other accused persons had also made attempt to attack on the staff by using deadly weapons. He tried to take them into custody by showing service revolver and using minimum force. All of them made futile attempt to escape by throwing deadly weapons. Police staff had taken all of them into custody. Accused No.1/Afsar Khan had one long, accused No.2/Akram Pasha had one chilli powder packet, accused No.3/Ayaz Ahammed had one button knife, accused No.4/Afroz Khan had one sickle, accused No.5/ Syed Najimuddhin had one dragger, accused No.6/Nawaz Khan had one chilli powder packet, accused No.7/Waseem Khan had one dragger, accused No.8/Kousar Khan had one long and accused No.9/Jahir had one sickle. Scorpio vehicles used by the accused being registration number KA-03-MD-8996 and KA-35-M-3147. By writing panchanama from 4.30 p.m., to 5.45 p.m., he seized all deadly weapons and vehicles. Along with accused, he returned to the police station and registered a case against accused persons in Cr.No.367/2012. He sent F.I.R. to the jurisdictional court. 14
S.C.No.435/2013 & S.C.No.279/2019 Pw.1 identified Ex.P.1/ F.I.R. and Ex.P.2 his report. Pw.1 further identified Ex.P.3/seizure panchanama. He entered seized articles in station P.F.No.194/2012 and reported the same to the court.
15.1) As per order of A.C.P. Suresh Babu, he had taken records of the case from Cw.24 for further investigation. Pw.1 identified accused who were present before the court. Pw.1 further deposed that he can identify rest of the accused persons. Pw.1 identified Mo.1 and Mo.2/ long, sickle, Mo.3 and 4 two daggers, Mo.5 and 6/ two chilli powder packets, Mo.7/ button knife, Mo.8 and 9/ two sickles. Pw.1 further deposed that he can identify two Scorpio vehicles bearing Reg.No.KA-03-MD- 8996 and KA-35-M-3147.
15.2) In the cross-examination Pw.1 admitted that he had not entered the information received in station dairy. Pw.1 admitted that after receiving information, straightaway he went to the spot. Pw.1 admitted that he cannot say who brought panchas. Pw.1 admitted that 15 S.C.No.435/2013 & S.C.No.279/2019 prior to conducting ride individual search was not made in the presence of panch witness. Pw.1 admitted that he had not taken photo of the compound, to show the mark of assault by long which fell on compound. Pw.1 admitted that he cannot say the name of individual staff, who arrested each accused persons. Pw.1 admitted that particulars of accused from whom weapons are seized is not mentioned in Ex.P.1/Report. Pw.1 admitted that description of long, sickle, length of sickle is not mentioned in Ex.P.2/mahazar. Pw.1 admitted that weapons like Mo.1 to 9 are available in the scrap shops. Pw.1 admitted that, notice was not given to panchas. Pw.1 further admitted that 10 police staffs were not signed seizure mahazar. Aforesaid admissions elicited in the cross-examination of Pw.1 is not sufficient to prove that Pw.1 deposed falsely for the reason that nothing suggested to show that Pw.1 had reason to register false case against accused.
15.3) Pw.1 is police officer. In the examination-in- chief Pw.1 explained how he got information and how ride 16 S.C.No.435/2013 & S.C.No.279/2019 was conducted, accused were arrested. Further Pw.1 deposed with respect to assault made by the accused persons on Cw.4/Dharmendra P.S.I. No such admissions forthcoming in the cross-examination of Pw.1 to show that Pw.1 had any reason to file false case against accused persons and to depose false evidence against them.
16. Pw.4/Cw.4-Dharmendra T.M. is the then P.S.I. in Banashankari police station. In his evidence Pw.4 deposed that on 21.4.2012 Cw.1/ P.Muralidhar Police Inspector deputed him for bandobasth duty at Yarab Nagar Main Road along with Cw.5/Manju B.P. P.S.I. and other staff, as hearing of the case relating to Cr.No.12/2011 was fixed and there was possibility of galata by accused persons to prevent brothers of deceased Diwan Ali and witnesses from attending court to give evidence. When he was on beat duty, Cw.1/P.Muralidhar police inspector called him over telephone at 4.15 p.m., and informed about information received by him.
17
S.C.No.435/2013 & S.C.No.279/2019
17. As per directions issued by Cw.1, he went to the spot. They found 9 persons i.e., accused No.1/Afsar Khan and his followers in two Scorpio vehicles armed with deadly weapons. Along with two panch witnesses, a ride was conducted. Accused No.1/Afsar Khan made an attempt to murder him by causing assault on his neck by using long. In an attempt to escape from the said assault, he fell down. Assault of the said long fell on the wall of the school, caused damage on the wall. Cw.1/P.Muralidhara P.I. by showing his service revolver, tried to arrest those 9 persons. At that time all of them made an attempt to escape. By using minimum force, all of them were taken into custody. In the presence of panch witnesses, under the cover of panchanama, deadly weapons found in the possession of the accused were seized by Cw.1. Along with accused, seized articles, two Scorpio vehicles were brought to the station. A case was registered against them.
18. Pw.4 deposed that he can identify the accused 18 S.C.No.435/2013 & S.C.No.279/2019 persons, mahazar and seized weapons. Pw.4 identified Ex.P.2/ seizure panchanama, identified Mo.1 to 9 weapons. Pw.4 identified accused No.1, 3 to 5 present before the court. Pw.4 identified accused No.1, who made an attempt to murder him. Pw.4 deposed that he was taken treatment in Jayanagar Government Hospital. He had given statement to the investigation officer.
18.1) In the cross-examination Pw.4 admitted that on the date of incident, Cr.No.12/2011 was not fixed for trial before FTC-10, Bengaluru and charge was also not framed. He cannot say who brought panchas. Pw.4 admitted that no personal search was made before conducting ride. Pw.4 admitted that near Urdu school, there are residential houses. Pw.4 admitted that no permanent inhabitants of locality were called. Pw.4 admitted that he caught accused No.1/Afsar Khan . Pw.4 admitted that he cannot say particulars of staff, who caught each of the accused persons. Pw.4 admitted that on Mo.1 to 9, no chit containing their signatures was affixed. Pw.4 admitted that there is no signatures of 19 S.C.No.435/2013 & S.C.No.279/2019 panch witnesses on Mo.1 to 9. Description of "long" used for assault on him was not mentioned in his statement. Pw.4 admitted that, he cannot remember any special identification mark on the said long. He cannot say the name of staff, who wrote Ex.P.3/panchanama. Pw.4 admitted that, accused No.1 to 9 had already involved in a crime in the same police station. Pw.4 admitted that photo of the compound was not taken by the Investigating Officer. Pw.4 admitted that, name and address of accused No.1 to 9 was known to him.
18.2) No such admissions elicited in the cross- examination of Pw.4 to show that there was any reason for Pw.4 to deposed false against accused No.1 with allegation of attempt to murder him by using deadly weapon like long. No suggestions made or admissions elicited in the cross-examination of Pw.4 to show that Pw.4 had ill-will, enimity against accused No.1. There is no suggestion even in the cross-examination of Pw.4 that for what purpose Pw.4 is deposing false against accused No.1. Except mere suggestion that Pw.4 was not present 20 S.C.No.435/2013 & S.C.No.279/2019 on the spot and accused No.1 was not present on the spot, no other useful admissions are elicited or suggestions made to substantiate the aforesaid allegations that evidence adduced by Pw.4 is false.
19. Pw.7/Cw.13/Kemparaju is the then police constable in Banashankari police station. In his evidence Pw.7 has deposed that Pw.1.Muralidhar informed that accused No.1/Afsar Khan and others were attempting to commit dacoity and hence called them near P.S.T. Junction. Accordingly, along with P.S.I./Cw.4-Dharmendra Cw.5, Cw.7, Cw.8, he went to the spot. As per the order of Police Inspector, they went behind Urdhu school of Yarab Nagar. They found two Scorpio vehicles with 7 to 8 persons armed with long and draggers. When they conducted ride to take them into custody, one of them made an attempt to murder Cw.4/Dharmendra by causing assault by using long. Cw.4/Dharmendra escaped from the assault and fell down, sustained injury. Pw.1/Muralidhara P.I., by showing his service revolver has tried to arrest those persons. By throwing deadly 21 S.C.No.435/2013 & S.C.No.279/2019 weapons, accused persons tried to escape. By using minimum force, all of them were taken into custody. He caught accused No.7/Vaseem Khan. In the presence of panchas, deadly weapons, two Scorpio vehicles were seized under the cover of mahazar. Along with accused, mahazar and seized articles were brought to the police station. Cw.1 registered a case against the accused persons. Pw.7 identified accused No.1 to 5 and 9 present before the court. Pw.7 identified Ex.P.3/seizure panchanama and Mo.1 to Mo.9 produced before the court. Pw.7 further deposed that he had given statement to the investigation officer.
19.1) In the cross-examination Pw.7 has admitted that there is movement of public behind Urdhu School at Yarab Nagar. Pw.7 admitted that as accused persons were talking in Urdhu language, they were unable to understand what they were talking. He do not know the vehicles used by other police staff to come to the spot. Pw.7 admitted that, he do not know the residential area of panch witnesses. Pw.7 admitted that no personal 22 S.C.No.435/2013 & S.C.No.279/2019 search was conducted in the presence of panch witnesses. He cannot remember the length of knife used to assault on Cw.4/Dharmendra.
20. Pw.8/Cw.24/Lokesh Kumar is the then Police Inspector at Kumaraswamy Layout Police Station. In his evidence Pw.8 deposed that as per order of A.C.P., he took case file from Cw.1/Muralidhara Police Inspector for further investigation. On the same day, he visited Banashankari police station, interrogated accused No.1 to 9 and recorded their voluntary statements. In the voluntary statements, accused No.1 to 9 had given information about purchase of weapons. On the basis of informations received from accused persons, he visited places from where deadly weapons were purchased by the accused persons. He was unable to found vendors of the deadly weapons. In the presence of accused persons and pancha witnesses, he prepared panchanama of the spot shown by the accused persons.
21. On 26.12.2013 he wrote letter as per Ex.P.21 to 23 S.C.No.435/2013 & S.C.No.279/2019 Cw.1 to produce documents. Cw.1 produced F.I.R. in Cr.No.141/2010 and first information given by Syed Nadeem. He identified F.I.R. at Ex.P.22, complaint at Ex.P.23. He wrote letters to the office of R.T.O. Indiranagar to issue 'B' extract of KA.03-MD-8996 Scorpio vehicles and obtained 'B' extract as per Ex.P.24 and Ex.P.25. On 7.1.2013 he obtained Wound Certificate of Cw.4/Dharmendra as per Ex.P.26. On 10.1.2013 he enquired and recorded statements of witnesses. After completion of investigation, he submitted charge sheet to the court. Pw8 identified accused No.1 to 6, 8, 9 present before the court. In the cross-examination, no such admissions elicited to show that a false charge sheet is filed against accused persons. No such admissions elicited to show that Pw.8 had ill-will, personal vengeance against accused person's to depose false evidence.
22. Pw.9/Cw.24/Dr. T.Kumara Gowda is the medical officer. In his evidence Pw.9 deposed that on 21.12.2012 he was on duty as CMO of General Hospital, Jayanagara. Midnight at 1.20 a.m., Dharmendra T. aged about 38 24 S.C.No.435/2013 & S.C.No.279/2019 years came to the hospital for treatment with history of assault. On examination, he found 1 x 1 cm wound with contusion on his right forearm. He had given treatment to the said wound. He had given wound certificate to the Investigating Officer as per Ex.P.26 Pw.9 opined that wound shown on Ex.P.26 could be caused when a person fell down in an attempt to escape.
22.1) Pw.9 is a medical officer. In his evidence Pw.9 had given detail of injury sustained on Cw.4 and treatment given to him. Further Pw.9 identified wound certificate Ex.P.26 issued by him. Evidence adduced by Pw.9 is corroborated with the contents of Ex.P.26/Wound certificate. Admissions elicited in the cross-examination is not able establish the fact that no treatment was given to Cw.4, P.S.I. Dharmendra. Further, no material is available in the cross-examination to show that Pw.9 is deposing falsely.
23. Pw.12/Cw.12/Nanjundaswamy is the then police head constable. In his evidence Pw.12 has deposed 25 S.C.No.435/2013 & S.C.No.279/2019 that on 20.12.2012 he was on duty as driver for the jeep of Cw.1/Muralidhara Police Inspector. On the said day, matter relating, to murder incident in Cr.No.11/2012 was fixed for hearing. They had bandhobasth duty. Evening at 4.15 p.m., informer informed that about 8 to 9 persons were assembled behind Urdhu school, armed with deadly weapons. They went to the spot. As the strength of the staff was not sufficient, they called additional staff and two panch witnesses. Cw.4/Dharmendra P.S.I. tried to arrest those persons. Accused No.1/Afasar Khan made an attempt to assault on Cw.4/Dharmendra. Cw.1 ordered to surround and take those persons into custody. By seeing them accused persons made futile attempt to escape. They arrested all, seized button knife, long, sickle, chilli powder packet, 2 scorpion vehicles by writing panchanama on the spot. They produced accused along with seized things at 4.45 p.m., before SHO of the police station. Pw.12 identified Ex.P.3/panchanama and Mo.1 to 9 Pw.12 further deposed that he can identify those 2 Scorpio vehicles. Pw.12 26 S.C.No.435/2013 & S.C.No.279/2019 further deposed that he can identify arrested 9 accused persons. Pw.12 identified accused No.4, 5, 6 and 9 present before the court. Accused No.1 to 3, 7 and 8 remained absent.
24. Ingredients required to be proved by the prosecution against accused persons is forming unlawful assembly, riot armed with deadly weapons, attempted to murder of Cw.4/Dharmendra, P.S.I. and assault, use of criminal force to deter public servant Cw.1, Cw.4 to 11 from discharging of their duties by the accused No.1 to
9. Further prosecution has to prove preparation to commit dacoity and being members of unlawful assembly formed to commit dacoity. To consider whether prosecution succeeded to prove the aforesaid ingredients beyond all reasonable doubt, it is just and necessary to consider entire evidence adduced by the witnesses on behalf of prosecution.
25. Learned Public Prosecutor appearing for the State has submitted that evidence adduced by Pw.1, 27 S.C.No.435/2013 & S.C.No.279/2019 Pw.4, Pw.7, Pw.9 and Pw.12 established the fact of attempt to commit murder by accused No.1 by assaulting on Pw.4, a police officer on his neck by using deadly weapon like long sickle. No admissions are elicited in the cross-examination of the aforesaid witnesses to disbelieve the evidence adduced by police officers. Hostile evidence adduced by Pw.2, 3, 6, 10, 11, 13 does not make the case of prosecution doubtful because Pw.2, 3, 6, 10, 11, 13 are witnesses present at the time of drawing mahazar and seizure of properties. As per Section 100(5) of Cr.P.C., examination of witness present at the time of seizure shall not be called as witness. Seizures may be proved with the help of evidence adduced by officers who seized properties. For the said reasons, Learned Public Prosecutor appearing for the State prayed to convict the accused persons for the offences proved against them.
26. Learned advocate for the accused has submitted that out of cited 20 witnesses in the charge sheet, only 13 witnesses are examined. Panch witnesses 28 S.C.No.435/2013 & S.C.No.279/2019 Pw.2, Pw.3, Pw.6, Pw.10, Pw.11 and Pw.13 turned hostile to the case of the prosecution. There are major contradictions in the evidence adduced by official witnesses on the point of summoning panch witnesses, vehicle used to go to the alleged spot of incideny. Particulars of weapons seized from the possession of accused is not mentioned in Ex.P.3/mahazar. Police witnesses did not sign Ex.P.3/mahazar. There are contradictions and omissions in the statements of witnesses recorded by the Investigation Officer. Name of the accused is not mentioned in the wound certificate of Pw.4 marked as Ex.P.26. Prosecution failed to prove the case beyond all reasonable doubts. For the said reasons, advocate for accused persons prayed to acquit the accused persons.
27. So far as forming unlawful assembly with common object to use criminal force against Cw.1, Cw.4 to Cw.9 police officers and police staff in order to prevent them from performing their duties is concerned, it is just and necessary to consider evidence adduced on behalf of 29 S.C.No.435/2013 & S.C.No.279/2019 the prosecution.
28. Pw.1/P.Muralidhar police officer deposed that on 20.12.2012, he got information about unlawful assembly of persons near Urdhu school of Yarab Nagar. When they attempted to arrest them, one of them made an attempt to murder Cw.4/Dharmendra by causing assault by using long. All of them made an attempt to attack on the police staff. By showing service revolver, by using minimum force, he had taken them into custody.
28.1) Pw.1 explained weapons possessed by each accused persons. Pw.1 identified accused persons who were present before the court. Pw.1 identified seized Mo.1 to 9 before the court. Evidence adduced by Pw.1 is corroborated with the evidence adduced by Pw.4/ Dharmendra who examined as Pw.4. In his evidence Pw.4/Dharmendra T.M. has deposed that on 20.12.2012 he was summoned by Cw.1/P.Muralidhar, as there was information about causing galata by the accused persons to prevent brothers of the deceased Diwan Ali 30 S.C.No.435/2013 & S.C.No.279/2019 and witnesses in the murder case of Diwan Ali to prevent them from giving evidence in the court of law. At 4.15 p.m., they got information about arrival of 9 persons including accused No.1/Afsar Khan and his followers to Yarab Nagar, armed with deadly weapons. Pw.4 deposed about presence of 9 accused persons armed with deadly weapons. Pw.4 further deposed that accused No.1 made an attempt to murder him by causing assault on his neck by using long sickle. Thereafter Cw.1/Muralidhar arrested them by showing service revolver and by using minimum force. Pw.4 also identified accused person present before the court, identified Mo.1 to 9 seized from the accused persons. Evidence adduced by Pw.1 and Pw.4 are corroborated with the version of evidence given by Pw.7/Kemparaju Head Constable. Pw.7 also deposed that on 20.12.2012 Cw.1/Muralidhar informed him to come to P.S.T.Junction because accused No.1/Afsar Khan and others came in two Scorpio cars, in order to commit dacoity. He along with P.S.I. Cw.4, Cw.5, Cw.8, Cw.9 went to the spot. He observed 7 - 8 persons armed with 31 S.C.No.435/2013 & S.C.No.279/2019 deadly weapons like long, dragger near Urdhu school of Yarab Nagar. One of them caused assault Cw.4/Dharmendra in order to murder him by using long. They arrested accused persons, seized Mo.1 to 9 weapons. Pw.7 identified accused persons present before the court. Pw.7 identified Mo.1 to 9 produced before the court.
29. Pw.1, Pw.4, Pw.5, Pw.7 are police witnesses. It is settled position of law that merely because witnesses are police officials, their evidence cannot be doubted unless there are materials to doubt the veracity of the evidence adduced by official witnesses. To know whether evidence adduced by aforesaid official witnesses are trustworthy or not, it is just and necessary to verify admissions elicited in the cross-examination of these witnesses. Carefully perused evidence adduced by these witnesses Apart from minor discrepancies, there is no such major discrepancies, contradictions in the evidence adduced by Pw.1, Pw.4, Pw.5, Pw.7 to disbelieve their versions with respect to unlawful assembly formed by 32 S.C.No.435/2013 & S.C.No.279/2019 accused persons armed with deadly weapons and attempt to cause assault on Cw.4/Pw.4/Dharmendra, and use of criminal force to prevent police staff from performing their duty.
30. It is not in dispute that Cw.1, Cw.4 to Cw.11 are public servants. Evidence adduced by Pw.1, Pw. 4, Pw.5, Pw.7 made it clear that on the date of incident, they participated in the raid conducted to take accused persons into custody. Evidence adduced by Pw.1, Pw.4 , Pw.5, Pw.7 made it clear that on the date of incident, accused persons attacked on them to prevent them from performing their official duty.
31. So far as attempt to murder Pw.4/Dharmendra is concerned, it is just and necessary to scrutinize the evidence adduced by Pw.4. Pw.4/Dharmendra deposed in his evidence that when he, along with other police witnesses attempted to take accused persons into custody, accused No.1/Afsar Khan made an attempt to murder him by causing assault on his neck by using long sickle. Pw.4 is not sustained any grievious injury. 33
S.C.No.435/2013 & S.C.No.279/2019 However, evidence adduced by Pw.4 shows that an assault was made by accused No.1 by using deadly weapon which attract provisions U/s.332 of I.P.C.
32. So far as allegation of making preparation to commit dacoity and assembly for the purpose of committing dacoity by the accused persons is concerned, except mere allegation, prosecution is unable to produce any materials to show that accused persons made an attempt for commission of robbery or dacoity of any other persons. Mere presence of accused even by possession objectable articles itself is not sufficient to establish the case punishable U/s.399 and 402 of I.P.C. as held by Hon'ble High Court of Karnataka in case Gaddeppa V/s. State of Karnataka. In the evidence adduced on behalf of prosecution also, except mere allegation, no other evidence is forthcoming to prove that on the date of incident, accused persons were assembled by making preparation to commit dacoity. Hence, this court is of the opinion that prosecution is unable to prove the charges leveled against the accused persons for 34 S.C.No.435/2013 & S.C.No.279/2019 offences punishable U/s.399 and 402 of I.P.C.
33. As per Section 100(5) of Cr.P.C. no need to summon witnesses present at the time of search or seizure to prove seizure of articles. Seizure of articles under panchanama may be proved with the help of evidence adduced by official witnesses present at the time of seizure and by examining Investigation Officer and scribe of seizure panchanama. In this case, with the help of the evidence adduced by Pw.1, Pw.4, Pw.5, Pw.7, Pw.8 and Pw.12, prosecution succeeded to prove the fact of seizure of Mo.1 to 9 under the cover of panchanama from the possession of the accused persons. Hostile evidence adduced by panch witnesses signed for panchanama drawn on the place shown by the accused persons made no difference to the case of the prosecution.
34. With the help of evidence adduced by Pw.1, Pw.4, Pw.5, Pw.7, Pw.8, Pw.9 and Pw.12, prosecution proved beyond reasonable doubt that, accused No.1, 3 to 35 S.C.No.435/2013 & S.C.No.279/2019 9 have committed offences punishable U/s.143, 144, 147, 148, 353, 332 R/w.Sec. 149 of I.P.C.
35. Due to lack of material evidence to prove the offence punishable U/s.399, 402 of I.P.C. prosecution has unable to prove offences punishable U/s.399, 402 and 307 of I.P.C. against the accused persons.
36. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution proved beyond all reasonable doubt that, on 20.12.2012 evening at 4.30 p.m., accused No.1, 3 to 9 formed an unlawful assembly armed with deadly weapons like long, sickle committed riot by using criminal force when complainant and his staff made attempt to arrest them. To prevent police officials from performing official duty, accused No.1, 3 to 9 used criminal force against public servants thereby committed offence punishable U/s.353 of I.P.C. In furtherance to achieve common object of their unlawful assembly, accused No.1 voluntarily caused hurt to deter public servant Pw.4 Dharmendra P.S.I. from 36 S.C.No.435/2013 & S.C.No.279/2019 performing his duty, whereby committed offence punishable U/s.332 of I.P.C. Section 149 of I.P.C., made every member of unlawful assembly guilty of offence committed by any one of the member of the unlawful assembly in prosecution of common object of their unlawful assembly, thereby accused No.1, 3 to 9 have committed offences punishable U/s.143, 144, 147, 148, 332, 353 R/w.Section 149 of I.P.C., Hence points No.1 and 3 are answered in the affirmative, point No.2 is answered in the Negative and point No.4 is answered partly in the affirmative.
37. POINTS NO.5 In view of the above findings on points No.1 to 4, following order is made;
ORDER Invoking provisions U/s.235(2) of Cr.P.C., accused No.1, 3 to 9 are found guilty for offences punishable U/s.143, 144, 147, 148, 332, 353 R/w.Section 149 of I.P.C.
Invoking provisions U/s.235(1) of Cr.P.C., 37 S.C.No.435/2013 & S.C.No.279/2019 accused No.1, 3 to 9 are acquitted for offences punishable U/Sec.307, 399 and 402 of I.P.C.
Further Judgment on imposing sentence is deferred.
Call on for hearing on sentence.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 1st day of February 2021.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 P.Muralidhar
Pw.2 Babu
Pw.3 Byataraj
Pw.4 Dharmendra T.M.
Pw.5 N.Ravi
Pw.6 Chinnadorai
Pw.7 Kemparaju
38
S.C.No.435/2013
&
S.C.No.279/2019
Pw.8 Lokesh Kumar
Pw.9 Dr.T.Kumara Gowda
Pw.10 Mubarak
Pw.11 Raju
Pw.12 Nanjundaswamy
Pw.13 Imran Khan
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Report
Ex.P.1(a) Signature of Pw.1
Ex.P.2 Requisition
Ex.P.2(a) Signature of Pw.1
Ex.P.3 Seizire Mahazar
Ex.P.3(a) Signature of Pw.1
Ex.P.4 Sheet contained Sample Seal
Ex.P.4(a) Signature of Pw.3
Ex.P.5 Portion of statement of Pw.2
Ex.P.6 Portion of statement of Pw.3
Ex.P.7 Portion of statement of Pw.5
Ex.P.8 Mahazar
39
S.C.No.435/2013
&
S.C.No.279/2019
Ex.P.8(a) Signature of Pw.6
Ex.P.8(b) Signature of Pw.8
Ex.P.9 Spot mahazar
Ex.P.9(a) Signature of Pw.6
Ex.P.10 Portion of voluntary statement of accused No.1
Ex.P.10(a) Signature of accused No.1 Ex.P.11 Portion of voluntary statement of accused No.2 Ex.P.11(a) Signature of accused No.2 Ex.P.12 Portion of voluntary statement of accused No.3 Ex.P.12(a) Signature of accused No.3 Ex.P.13 Portion of voluntary statement of accused No.4 Ex.P.13(a) Signature of accused No.4 Ex.P.14 Portion of voluntary statement of accused No.5 Ex.P.14(a) Signature of accused No.5 Ex.P.15 Portion of voluntary statement of accused No.6 Ex.P.15(a) Signature of accused No.6 Ex.P.16 Portion of voluntary statement of accused No.7 Ex.P.16(a) Signature of accused No.7 Ex.P.17 Portion of voluntary statement of accused No.8 Ex.P.17(a) Signature of accused No.8 Ex.P.18 Portion of voluntary statement of accused No.8 Ex.P.18(a) Signature of accused No.8 Ex.P.19 Portion of voluntary statement of accused No.9 Ex.P.19(a) Thumb Impression of accused No.9 Ex.P.20 Spot Mahazar Ex.P.20(a) Signature of Pw.8 Ex.P.20(b) Signature of Pw.10 40 S.C.No.435/2013 & S.C.No.279/2019 Ex.P.20(c) Signature of Pw.11 Ex.P.21 Copy of Letter dated 26.12.2013 Ex.P.21(a) Signature of Pw.8 Ex.P.22 F.I.R. No.141/2010 Ex.P.22(a) Signature of Pw.8 Ex.P.23 Complaint Ex.P.23(a) Signature of Pw.8 Ex.P.24 Document dated 5.1.2013 Ex.P.24(a) Signature of Pw.8 Ex.P.25 'B' Extract Ex.P.25(a) Signature of Pw.8 Ex.P.26 Wound Certificate Ex.P.26(a) Signature of Pw.8 Ex.P.27 Portion of statement of Pw.13 For Defence side:-
-Nil-
IV. List of material objects marked:-
Mo.1 & Mo.2 2 Longs
Mo.3 & Mo.4 2 Draggers
Mo.5 & Mo.6 2 Cloth bags
Mo.7 Button Knife
Mo.8 & Mo.9 2 Sickles
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 41 S.C.No.435/2013 & S.C.No.279/2019 2.2.2021 Accused No.1, 3 to 9 are present.
Copies of the judgment furnished to the accused. Accused are convicted for offences punisahbe U/s.143, 144, 147, 148, 332, 353 R/w.Sec.149 of I.P.C.
As per Section 235(2) of Cr.P.C., before hearing on the question of sentence provisions of Section 366 of Cr.P.C. or Section 4 of P.O.Act has to be considered. Hence, calling report from the Probation officer is necessary ,as per Section 4(2) of P.O.Act 1958.
Office is directed to call for report from the Probation Officer.
To hearing regarding applicability of Section 4 of P.O.Act by 10.2.2021.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
42
S.C.No.435/2013 & S.C.No.279/2019 1.2.2021 Accused No.1, 3 to 9 are present and their counsels are also present.
Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provisions U/s.235(2) of Cr.P.C., accused No.1, 3 to 9 are found guilty for offences punishable U/s.143, 144, 147, 148, 332, 353 R/w.Section 149 of I.P.C.
Invoking provisions U/s.235(1) of Cr.P.C., accused No.1, 3 to 9 are acquitted for offences punishable U/Sec.307, 399 and 402 of I.P.C.
Further Judgment on imposing sentence is deferred.
Call on for hearing on sentence.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.