Bangalore District Court
Sri Abdul Rasheed vs Ayub Khn on 4 March, 2024
KABC030431612016
IN THE COURT OF THE VI ADDL.CMM BENGALURU
Dated this the 04th Day of March, 2024
Present: RASHMI M,
L.L.B., L.L.M.
VI Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.16059/2016
Date of Offence : 17.03.2016
Name of : State by Wilson Garden
complainant Police Station, Bengaluru.
-vs-
Name of accused 1. Ayub Khan @ Ayub S/o
Amanulla, Aged 28 years, R/at
No.394, Badamakan, H.
Siddaiah Road, Bengaluru.
2. Amanulla Khan S/o Late
Hyder, Aged 56 years, R/at
No.394, Badamakan, H.
Siddaiah Road, Bengaluru.
3. Asif Pasha @ Asif S/o Sikander
Pasha, Aged 25 years, R/at
No.285, Badamakan, H.
Siddaiah Road, Bengaluru. .
4. Syed Firdoz @ Lol S/o Syed
Gafar, Aged 36 years, R/at
No.66, Badamakan, H.
Siddaiah Road, Bengaluru.
2 C.C.No.16059/2016
5. Muneer Ahamed @ Muneer S/o
Basheer Ahamed, Aged 29
years, R/at No.3, 11th Cross,
Someshwaranagara, 1st Block,
Jayanagara, Bengaluru.
6. Allabakaash @ Adil @ Auto Adil
S/o Riyaz Pasha, Aged 30
years, R/at No.215,
Badamakan, H. Siddaiah Road,
Bengaluru. .
7. Tabrez @ Anda S/o Nayeem
Pasha, Aged 20 years,
th
Fathimagalli, 4 Cross,
Nilasandra, Bengaluru.
8. Soyeb Pasha @ Shoyeb S/o
Shafeeq Pasha, Aged 20 years,
R/at No.297, Badamakan, H.
Siddaiah Road, Bengaluru.
9. Ameen S/o Rafeeq, Aged 22
years, R/at No.357,
Badamakan, H. Siddaiah Road,
Bengaluru. .
Offences : U/s.143, 146, 147, 341, 323,
complained off 355, 427, 448, 506 R/W
sec.149 of I.P.C. and Sec.2 Of
Prevention of Destruction and
Loss of Property Act-1981.
Plea of accused : Pleaded not guilty
Final Order : Accused No.1 to 9 are
acquitted
********
3 C.C.No.16059/2016
J U D G M E N T
Police Inspector, Wilson Garden Police Station has filed this charge sheet against accused No.1 to 9 for offences punishable under Sections U/s.143, 146, 147, 341, 323, 355, 427, 448, 506 R/W sec.149 of I.P.C. and Sec.2 of Prevention of Destruction and Loss of Property Act-1981.
2. Brief facts of prosecution case are that:-
It is a case of the prosecution that, on 17.03.2016 between 03.00 to 03.30 accused persons who came in a group trespassed into Al-Ameen degree college situated in S. R. Nagara, the accused were scolded the Secretary Shuban Sharrif with filthy language and they were shouting that the scholar ship was not properly given. They also threw chappals at CW4 who went to speak to the accused persons and insulted him the accused persons trespassed into the college by preventing the security guard from performing his duty also they assaulted CW1 and 2 with their hands and broke the furnishers causing a loss of Rs.25,000/- and threatened to kill CW3 and 4 thereby accused No.1 to 9 have committed the offences punishable under sections 4 C.C.No.16059/2016 U/s.143, 146, 147, 341, 323, 355, 427, 448, 506 R/W sec.149 of I.P.C. and Sec.2 of Prevention of Destruction and Loss of Property Act-1981.
3. After filing of this charge sheet, cognizance of alleged offences is taken. On appearance of the accused No.1 to 9 have enlarged on bail. Copies of charge sheet documents was furnished to accused No.1 to 9 u/s 207 of Cr.P.C. Charge is framed. Accused No.1 to 9 have not pleaded guilt of alleged offences and they claimed to be tried.
4. In order to prove the guilt of the accused No.1 to 9, prosecution has examined 6 witnesses as P.W.1 to 6 and got marked 13 documents from Exs.P1 and P13. After conclusion of prosecution evidence, statement of accused No.1 to 9 under Section 313 of Cr.P.C. was recorded. The accused No.1 to 9 have denied all the incriminating evidence against them and they chose not to adduce any evidence on their behalf.
5. On the basis of charge sheet allegation, the following points arose for consideration:
5 C.C.No.16059/20161. Whether the prosecution proves beyond reasonable doubt that on 17.03.2016 between 3.00 to 3.30 p.m the accused no.1 to 9 formed unlawfully assembly in front of Al-
Ameen Educational Society degree college main gate, Hosur Road, S.R. Nagar, Bengaluru with the common object of making galatha and there by committed offence punishable under section 143 R/w Sec.149 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 being the members of an unlawful assembly committed the offence of rioting and thereby committed offence punishable under section 147 R/w Sec.149 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 abused Suban Shareef, secretary of Al-Ameen college regarding not giving scholarship for children and registered false case and against them when CW4 questioned accused no.1 to 9 wrongfully restrained to CW4 and thereby committed offence punishable under section 341 R/w Sec.149 of IPC?
6 C.C.No.16059/20164. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 voluntarily caused simple hurt to CW4 by throwing slippers and also caused simple hurt to CW1 & 2 and thereby committed offence punishable under section 323 R/w Sec.149 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 trespassed into the college campus of Al-ameen college and assaulted CW1, 2 and 4 with intent to dishonour CW1, 2 and 4 and other officials of college and thereby committed offence punishable under section 355 R/w Sec.149 of IPC?
6. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 trespassed into the college campus damaged chairs, tables, broke opened the main gate and caused loss of Rs.25,000/- to college and thereby committed offence punishable under section 427 R/w Sec.149 of IPC?
7. Whether the prosecution proves beyond reasonable doubt that on the 7 C.C.No.16059/2016 above said date, time and place in furtherance of your common intention accused no.1 to 9 trespassed into the college campus of Al-ameen college and thereby committed offence punishable under section 448 R/w Sec.149 of IPC?
8. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place in furtherance of your common intention accused no.1 to 9 in furtherance of common intention committed criminal intimidation with a threat to the life of CW3 and 4 and thereby committed offence punishable under section 506 R/w Sec.149 of IPC?
9. What order?
6. Heard the arguments. Perused oral and documentary evidence adduced by the prosecution.
7. The following are findings to above points.
Point No.1 to 8: In the Negative Point No.9: As per final order, for the following:
8 C.C.No.16059/2016REA S ON S
8. Point No.1 to 8 : As these points are interlinked they are taken together for discussion. on 17.03.2016 between 03.00 to 03.30 accused persons who came in a group trespassed into Al-Ameen degree college situated in S. R. Nagara, the accused were scolded the Secretary Shuban Sharrif with filthy language and they were shouting that the scholar ship was not properly given. They also threw chappals at CW4 who went to speak to the accused persons and insulted him the accused persons trespassed into the college by preventing the security guard from performing his duty also they assaulted CW1 and 2 with their hands and broke the furnishers causing a loss of Rs.25,000/- and threatened to kill CW3 and 4 thereby accused No.1 to 9 have committed the offences punishable under sections U/s.143, 146, 147, 341, 323, 355, 427, 448, 506 R/W sec.149 of I.P.C. and Sec.2 of Prevention of Destruction and Loss of Property Act-1981.
9. P.W.1 Abdul Rasheed has stated in his examination-in-chief on 17.06.2016 at about 03.00 p.m. he was working as a security guard in Al-
9 C.C.No.16059/2016Ameen college, the accused persons picked up the quarrel and jumped the gate they assaulted him, also the accused assaulted CW2 with th hands, they damaged the chairs by throwing them. The Secretary Umar Ismail asked them to stop galata, the accused assaulted him. The Principal informed the police, who came to the college by that time the accused had escaped from the spot. He then lodged the complaint as per Ex.P1. He has signed the mahazar Ex.P2 as per Ex.P2(a). In his cross-examination by the advocate for accused he admitted that he lodged the complaint as per the instruction of the chairmen and secretary. In his further cross-examination by the advocate for accused he admitted that the accused had not assaulted anyone. It is elicited that on 28.09.2019 under the wrong information he gave his evidence against the accused persons. He admitted that accused have not damaged any property in the college. The accused did not assault him, in this regard he has not taken any treatment in the hospital. He admitted that he does not know as to what is written in the mahazar and the complaint. He admitted that he signed the same in the police station.
10 C.C.No.16059/201610. P.W.2 Fasalur Rehaman has also deposed in his evidence about the incident but in his further cross-examination it is elicited that on 28.09.2019 under the wrong information he gave his evidence against the accused persons. He admitted that accused have not damaged any property in the college. He admitted that CW1 had taken treatment for the injuries sustained by him some were else. It is elicited that he has not given any statement to the police.
11. P.W.3 Umar Ismail Khan has stated that, he does not know anything about the incident. He has identified the five photographs as Ex.P4 to 8 and 2 CD's are marked as Ex.P9 and 10. As the witness has not supported the prosecution case he has been treated hostile. In his cross-examination by the Ld. APP nothing has been elicited in support of the prosecution case.
12. P.W.4 Salman Sharif has stated that, on 17.03.2016 at about 02.30 p.m. in side the compound of Al-Ameen college the 1 st accused and his father along with another person was shouting that scholarship was not given in the college. The 11 C.C.No.16059/2016 accused had beaten his father and the secretary of the college with their hands and chappals also the security guard Abdul Rasseed was assaulted. The accused had thrown the tables. He has identified the 5 photographs and 2 CD's which are marked from Ex.P4 to 10. As the witness has not fully supported the prosecution case he has been treated partly hostile. In his cross-examination by the Ld. APP he admitted that accused had trespassed into the college between 03.00 to 03.30 p.m. and they had damaged the table and chairs of the college causing loss of Rs.25,000/-. He admitted that the accused has threatened to kill CW1. In his cross-examination by the advocate for accused he admitted on 19.03.2016 he has not given any statement to the police. He denied the suggestion that no incident as stated in the complaint but he is deposing falsely before the court.
13. P.W.5 B.M. Jakeer has stated that, he does not know the accused persons. During the march 2016 at about 03.00 p.m. when he was in his chamber in Al-Ameen Educational Society college. There was a fight going on the college. On hearing the sound he along with the principal downstairs.
12 C.C.No.16059/2016Few peoples were throwing the stones they were damaging the tables and chairs. The chairman and the secretary of the society were also present. He has identified the five photographs Ex.P4 to 10. As the witness has not supported the prosecution case he has been treated hostile. In his cross-examination by the Ld. APP admitted that the accused persons had trespassed into the college and they were scolding in filthy language. He admitted that they were throwing chappals and had beaten the security guard. He admitted that by breaking the tables and chairs they incurred a loss of Rs.25,000/-. He admitted that accused persons have given life threat. In his cross-examination by the advocate for accused he admitted that on the alleged day of incident he does exactly know as to who had come to the college. He admitted that he cannot identify the said persons. It is elicited that except one or two accused he has not seen the other accused earlier. He admitted that he has not given any statement to the police. He admitted that he has not given the photographs Ex.P4 to 10 to the police. He denied the suggestion that as per the instructions of CW3 he is deposing falsely before the court.
13 C.C.No.16059/201614. P.W.6 Dr. Mohan V.J. has deposed about examining CW1 and 2. He has given the wound certificates as per Ex.P12 and 13.
15. P.W.7 Dr.Suban Sharif has stated that,he has not seen the accused persons. He stated that the accused had not damaged any property of the college. He stated that the accused has not assaulted anyone in their college. He has not witnessed any incident. He has no information about the incident. He has not given any statement to the police. As the witness has not supported the prosecution case he has been treated hostile. In his cross-examination by the Ld. APP nothing has been elicited in support of the prosecution case.
16. On considering the oral and documentary evidence placed before the court it is pertinent to note that the complainant/PW1 even though has deposed about the incident in his examination in chief by the Ld. App. But his further cross- examination by the advocate for accused contradicts with his examination in chief and the complaint. He has stated that because of the compulsion of others he has signed the mahazar and complaint but does 14 C.C.No.16059/2016 not know its contents. Similarly the further cross- examination of PW2 contradicts with his examination in chief wherein he has denied the incident. PW3 has turned hostile as such his evidence is not of any help to the prosecution. PW4 has deposed about the incident but his evidence is silent as to where he was present when the alleged incident had taken place. Further his evidence is inconsistent in nature same cannot be relied in nature. PW5 has stated that he has not seen the incident and only after hearing the sound he went downstairs. It is elicited that he does not know which of the accused had come to the college. On considering the oral and documentary evidence it is pertinent to note that the complainant and the injured have given contradictory evidence which cannot be relied upon to the prove the guilt of the accused. On perusal of the 5 photographs are marked Ex.P4 to 8 and the CD's are marked as 9 and 10. It can be seen that few people are trying to climb the gate and one person appears to be holding a material in his hand which is not clear as to whether it is a chappals or any other material. There are no photographs of the damaged chairs and tables. The I.O. conducted the investigation has 15 C.C.No.16059/2016 failed to seize the material objects used to commit the offence of assault that is the chappals also he has failed to take the photographs or produced the broken chairs and tables. As such there is lacuna in the investigation carried out by the I.O. As discussed supra the evidence of the complainant and the injured persons are contradictory and inconsistent in nature. As such their evidence cannot be relied. In view of the inconsistency and lacuna in the investigation carried by the I.O. Also in the absence of conclusive or corroborative evidence before the court. As such it can be safely said the prosecution has failed to prove beyond all reasonable doubts that accused No.1 to 9 have committed offences punishable under sections 143, 146, 147, 341, 323, 355, 427, 448, 506 R/W sec.149 of I.P.C. and Sec.2 of Prevention of Destruction and Loss of Property Act-1981. Hence point No.1 to 8 are answered in the Negative.
17. Point No.9: - For the reasons stated and findings given on point No.1 to 8, following is:
16 C.C.No.16059/2016ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 to 9 are acquitted for the offences punishable under Sections U/s.143, 146, 147, 341, 323, 355, 427, 448, 506 R/W sec.149 of I.P.C. and Sec.2 Of Prevention of Destruction and Loss of Property Act-1981.
The bail bonds and surety bonds executed by accused No.1 to 9 shall be in force till the lapse of appeal period from the date of this order and thereafter same shall stand canceled automatically.
(Typed by the stenographer directly on computer, revised, corrected by me and then pronounced in open court on this the 04 st day of March, 2024).
(RASHMI M.) VI Addl. CMM., Bengaluru.
ANNEXURE
1. List of witnesses examined for prosecution :-
1. P.W.1 : Abdul Rasheed
2. P.W.2 : Fasalur Rehaman
3. P.W.3 : Umar Ismail Khan
4. P.W.4 : Salman Sharif
5. P.W.5 : B.M. Jakeer
6. P.W.6 : Dr. Mohan V.J.
7. P.W.7 : Dr.Suban Sharif 17 C.C.No.16059/2016
2. List of exhibits marked for prosecution :-
1. Ex.P1 : Complaint
2. Ex.P2 : Spot Mahazar
3. Ex.P3 : Statement of P.W.2
4. Ex.P4 to 8 : Photos
5. Ex.P9 & 10 : C. D.
6. Ex.P11 : Statement of P.W.3
7. Ex.P12 &13 : Wound Certificates
3. List of material object : NIL
4. List of Witnesses examined for defence:- NIL
5. List of documents marked for defence:- NIL Digitally signed RASHMI by RASHMI M M Date: 2024.03.05 11:01:59 +0530 VI Addl. CMM., Bengaluru