Bangalore District Court
State Of Karnataka vs Saddam Hussain on 6 April, 2022
KABC010338542018
IN THE COURT OF THE LXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY [CCH.63]
Dated: This the 6 th day of April, 2022
: Present :
Sri R. ONKARAPPA., B.Sc., L.L.B.,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
Sessions Case No. 1977/2018
Complainant : State of Karnataka
By Amruthahalli
Police Station,
Bengaluru,
[By : Public Prosecutor]
Vs.
Accused 1. Saddam Hussain
S/o Wajid Khureshi
Aged about 20 years,
R/at No. 270, 3rd Cross,
Balaji Layout,
Hegade nagar, Arebic College post,
Bengaluru
2. Mohammed Abrahar,
S/o Mohammed Shahid,
Aged about 19 years,
R/at 2nd Cross, Near Raja Masjid,
Pathima layout, Arebic College post,
Bengaluru
By A1- GAS and A
2 S.C.No. 1977/2018
2 T.G. Suresh and
associates, Advocate]
Date of commission of offence 20.07.2017
Date of report of offence 20.07.2017
Arrest of the Accused Accused Nos. 1 and 2 arrested
on 16.08.2017
Name of the complainant Pradeep P A
Date of commencement of trial 16.01.2020
Date of closing of prosecution 30.12.2021
evidence
offence complained of Under Sections 397 of I.P.C.
Opinion of the Judge Accused Nos. 1 and 2 are
acquitted acting under Section
235(1) of Cr.P.C.
(R. ONKARAPPA)
LXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
3 S.C.No. 1977/2018 The Amruthhalli police submitted the charge sheet in Crime NO. 125/2017 against the accused Nos.1 to 4 for the offences punishable under sections 397 of Indian Penal Code.
2. The case of the prosecution in brief is that, on 20.07.2017, at about 1.15 am., the complainant and his friends were proceeding towards their friend's house. when they were near ring road, Yogeshwar nagar, four strangers came by two black coloured numberless motorcycles and parked their motor cycles at a little distance. One of the accused persons twisted the hands of his friend Ramakrishna and snatched Dell laptop, Redmi mobile from him. Another accused demanded to hand over purse, mobile phone, ATM cards. But he refused to hand over his belongings. The angry accused hit the complainant by an iron rod over his right shoulder, right arm and his forehead. As a result, the complainant sustained blood injuries. Later on the accused persons snatched forcibly Redmi mobile phone from him and went towards K.R. Puram who were 25-30 years old talking in Kannada language. Among the four accused one was wearing blue coloured jerkin and another persons was wearing orange coloured shirt. The publics present there admitted the complainant and his friends to the Baptist hospital. After receiving MLC examination police came to the hospital and took the statement of the complainant and his friends and register the complaint. Upon such complaint, the complainant police registered the case in Crime No. 125/2017 for the offence punishable under section 394 of IPC.
4 S.C.No. 1977/20183. After completion of investigation, the Amruthahalli police filed the charge sheet against accused Nos.1 to 4. On filing of the charge sheet, the case registered before CMM Court, Bengaluru in C.C.No.26213/2017. Since the accused Nos. 3 and 4 are absconded, as per the order of the trial Court 16.10.2018, the accused Nos. 3 and 4 split up from the main case. As per order dated 16.10.2018 committed the case against accused Nos.1 and 2 to the Hon'ble Prl. City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Prl.City Civil & Sessions Judge, case was registered in mother case in S.C.No.1977/2018. Thereafter on hearing the prosecution as well as learned defence counsel U/s.227 of Cr.P.C, this Court framed charge against accused No. 1 and 2 for the offences punishable under Sections 397 of I.P.C. When the charge read over and explained to the accused No. 1 and 2, they pleaded not guilty and claimed to be tried.
4. That, in order to prove the case of the prosecution, out of sixteen witnesses cited in the charge sheet, the prosecution got examined only ten witnesses as PW1 to PW10 and got marked Ex.P1 to Ex.P12 and Ex.P12(a) and material objects as M.O.1 to M.O.8. On 10.02.2020, learned Public Prosecutor submit that evidence of CW10 to CW13 may be given up, in view of her submission, evidence of CW10 to CW13 have been dropped. The prosecution evidence was taken as closed on 30.12.2021. Thereafter the case was posted for recording statement of the accused Nos. 1 and 2 under Section 313 of Cr.P.C. Accused Nos. 1 and 2, when examined under Section 5 S.C.No. 1977/2018 313 of Cr.P.C., denied the incriminating circumstances appearing in evidence against them. Accused No.1 and 2 have not led any defence evidence on their behalf. Learned Public Prosecutor sought for issuance of witness summons to CW4 and CW6. In spite of repeated issuance of Witness Warrant to the CW4 and CW6 police have not secured before the court. CW4 and CW6 and No ground established by the prosecution to issuance fuhrer coercive process against CW4 and CW6. Accordingly prayer made by the learned Public Prosecutor is hereby rejected on 28.03.2022. Since the accused statement u/s 313 of Cr.P.C. have already been recorded on 31.12.2021, case posted for Argument.
5. Heard arguments of both sides. Perused entire records.
6. Under the facts and circumstances of the case, the following Points arise for consideration of this Court:
1. Whether the Prosecution proves its case, beyond all reasonable doubt that, the accused have committed a robbery or dacoity on CW1 with attempt to cause death or by causing grievous hurt to him and thereby accused Nos. 1 and 2 committed the offences punishable under Section 397 of I.P.C.?
2. What Order?6 S.C.No. 1977/2018
7. My findings on the above Points are as under:
Point No.1 - In the Negative, Point No.2 - As per Final Order, for the following:
REASONS
8. Point No. 1 : In order to prove the case of the prosecution, out of sixteen witnesses cited in the charge sheet, the prosecution got examined only ten witnesses as PW1 to PW10 and got marked Ex.P1 to Ex.P12 and Ex.P12(a) and material objects as M.O.1 to M.O.8.
9. The charge leveled against the accused is punishable under Section 397 of IPC. There by the prosecution case involved both direct and the circumstantial evidence on record. Now, the question before me whether, the prosecution have established its case by completing the chain of the circumstances. To assess the same that, I go through the oral testimony along with all documents available on record.
10. Cw1 Pradeep examined as Pw1. PW1 deposed that from 2015 to 2017, he had worked as a technician at Fissil Tech. As per the prosecution case he is the complainant. PW1 deposed that he lodged a complainant at before the Police as per Ex.P1 and his signature as per Ex.P1(a). though PW1 being a complainant and he examined, except he deposed about lodging of complaint and he turned hostile in total. Even in spite 7 S.C.No. 1977/2018 of cross examination nothing probable case of the prosecution established through the mouth of PW1. Since Pw1 denied the statement u/s 161 CrPC recorded by the investigating officer, his statement now marked as per Ex.P2.
11. Cw2 Ramakrishna examined as Pw2. PW2 deposed that from 2015 to 2017, he had worked as a technician at Fissil Tech. As per the prosecution case PW2 is the eye Witness to the incident. Though Pw2 deposed in so far lodging of the complaint by the Pw1, Pw2 turned hostile in total. According to prosecution case further role of the Pw2 that, Pw2 is one of the spot mahazar Witness. Though PW2 got identified his signature available on Ex.P3 Spot mahazar and his signature as per Ex.P3(a). Pw2 turned hostile, even in so far his role of drawn the spot mahazar by the investigating officer. Since Pw2 denied the statement u/s 161 CrPC recorded by the investigating officer, his statement now marked as per Ex.P4.
12. Cw3 Shivakumar examined as Pw3. As per the prosecution case PW3 is also one of the Pancha Witness to the spot mahazar now already got marked as per Ex.P3. Though PW3 got identified his signature as per Ex.P3(b), Pw3 turned hostile in total. Even inspite of cross examination nothing of the prosecution case established through the mouth of Pw3.
13. Cw5 Bipin V.P. examined as Pw4. As per the prosecution case PW4 is also one of the Pancha Witness to the spot mahazar now already got marked as per Ex.P3. Though 8 S.C.No. 1977/2018 PW4 got identified his signature as per Ex.P3(c), Pw3 turned hostile in total. Even inspite of cross examination nothing of the prosecution case established through the mouth of Pw4.
14. CW15 Gopalaiah examined as PW5. Pw5 deposed that he being a ASI, he served his service at Amruthahalli Police station from 05.02.2017 to 05.01.2019. On 19.07.2017 when Pw5 was in night duty, on 20.07.2017 at early morning 3.00 am, station house officer intimated to PW5 that, some unknown persons were assaulted the Cw1 and CW1 took the treatment at Baptist hospital. Based on such information PW5 sent his junior colleague HC Yashwanth Pawar to Baptist hospital to record the statement of Cw1. In turn HC Yashwanth Pawar recorded the statement of CW1 and after returned to Police station, he produced the same at before Pw5. Based on such statement Pw5 registered the case in crime No. 125/2017 for the offence punishable u/s 394 IPC and he sent FIR to the court. Pw5 can identified the said statement, the same statement already now got marked as per Ex.P1 and his signature as per Ex.P1(c). Pw5 can identified the FIR, the same FIR now got marked as per Ex.P5 and his signature as per Ex.P5(a). In view of Cw2 point out the place of incident, on 20.07.2017 from 6.00 am to 7.00 am. Pw5 drawn an spot mahzar. He can identified the same spot mahazar. The same spot mahazar already got marked as per Ex.P3 and his signature now got marked as per Ex.P3(d). Since the offence against to the accused is of heinous in nature, Pw5 forwarded the case record to Cw16 Police Inspector. Even inspite of cross examination nothing of the probable defence of 9 S.C.No. 1977/2018 the accused elicited through the mouth of PW5.
15. Cw7 Shasikumar examined as PW6. According to prosecution case Pw6 is one of the seizer mahazar witness. As per the prosecution case on 14.08.2017, Police have seized one two wheeler Apche Motor Cycle bearing its register No. KA05 HD 8118 from the A2. Though Pw6 got identified his signature available on seizer mahazar, now at marked as per Ex.P6 and his signature as per Ex.P6(a), Pw6 turned hostile in total. In spite of cross examination nothing of the prosecution case established through the mouth of Pw6.
16. Cw8 Murhty examined as PW7. According to prosecution case Pw7 is one of the seizer mahazar witness. As per the prosecution case on 14.08.2017, Police have seized one two wheeler Apche Motor Cycle bearing its register No. KA05 HD 8118 from the A2. Though Pw6 got identified his signature available on seizer mahazar, already marked as per Ex.P6 and his signature as per Ex.P6(b), Pw7 turned hostile in total. In spite of cross examination nothing of the prosecution case established through the mouth of Pw7.
17. CW14 Dr. P. N. Prakash examined as PW8. Pw8 deposed that, since from 20 years, he is working as Medical Officer at Bapist Hospital, Bangalore. On 20.07.2017, at morning 2.00 am one Pradeep P A came to his hospital aged about 24 year, with the history of assault. On such history he has examined on him and he found the following injuries. 1. 3x3 cms abrasion over the right forehead. 2. Contusion over right side of 10 S.C.No. 1977/2018 Head with red colourness. 3. Multiple super facial abrasion over the back. The above all injuries are all simple in nature. After treated he got discharge from the OPD. In this regard he has issued wound certificate pertains to injured. Now he can seen the same and got marked the same as Ex.P9 and his signature got marked Ex.P9(a). On the same day, at 4.30 am morning Police have came to his hospital and recorded the statement of injured at his presence as well as another doctor by name Dr. Vivek. At that time patient has fit to gave an statement. The injuries mentioned in Ex.P9 could be caused by an assault with an iron rod. In cross examination it elicited injury mentioned at Ex.P9 could be caused if person fell from the motor cycle. Also elicited at the time of recording the statement of the injured by the Police, he far away with the spot.
18. Cw9 Venkatesh examined as PW9. Pw9 deposed that, he being a Head Constable he served his service from 2016 to November 2018 at Amruthahalli Police Station. On 13.08.2017 Cw16 P. S. Srinivasa Raju deputed the Pw9 along with Cw13 Basavaraju, Cw14 Pampa Naika, Cw11 Lepakshappa and one Salim to patrol the accused who they need in crime No. 125/ 2017 and 126/2017. Based on such deputation Pw9 and his staff went on traced the accused at 4.30 p.m. at Hebbal Road, Lumibini Garden service road, about four unknown person were sat in one Auto riksha. When Pw9 and his staff went near to said Auto Riksha and on enquiry, the unknown person started to ran away from the spot. When Pw9 and his staff chased the same accused, Pw9 and his staff got succeed in caught hold two 11 S.C.No. 1977/2018 accused among the four accused and two accused were ran away from the spot. When enquired about the accused, since of accused not replied properly Pw9 and his staff caught hold them and asked the name and address, the accused told that, their names Saddam and Abraham. When conduct a personal search on A1 and A2, Pw9 found that A1 possessed one sharp edged knife and one Redmi Mobile phone and Rs.1000/- cash. A2 possessed cash only. When came near to Auto riksha and after check out the same auto riksha, Pw9 found that two iron rods were present at auto riksha. When so far questioned regard to iron rod, the accused were not replied properly. For that PW9 took the A1 and A2 and produced A1 and A2 on that day at 5.00 pm at before Cw16 Police inspector along with one report submitted by the Cw13. Pw9 can identified A1 and A2 who is at before the court. Pw9 can identified material object which were seized at the possession of A1 and A2. PW9 identified and got marked two iron knife as per MO1 and MO2, two iron rod as per MO3 and MO4 and two mobile hand sets as per MO5 and MO6. Pw9 can identified and got marked three Rs.500/- face value currency note as per MO7 and five Rs.100/- face value note as per MO8. PW9 also got identified auto and same now got marked as per Ex.P10. In an cross examination it elicited No physical appearance of the accused provided by the Station house officer to PW9 to trace an accused. PW9 can not to say which colour of the dress that the accused were worn on that day.
19. CW16 Srinivas Raju examined as PW10. Pw10 12 S.C.No. 1977/2018 deposed that he being a Police Inspector, he served his service at Amruthahalli Police station from August 2014 to October 2017. On 20.07.2017 Pw10 received the case record from Cw15 ASI Gopaliah and enquired the same. On 13.08.2017 CW13 Basavaraju, Cw12 Pampa Nayaka, Cw9 Venktesh, CW11 Lepakshappa, CW10 Lokesh produced A1 and A2 along with report. Pw10 arrested the A1 and A2 and recorded the voluntary statement of A1 and A2. PW10 can identified said report. The same report now got marked as per Ex.P11 and his signature as per Ex.P11(a). PW10 identified the signature of Cw13, signature of Cw13 got marked as per Ex.P11(b). When at the time of enquired the accused Pw10 seized one Bazaj auto bearing its register No. KA03 AD 4524, two iron rods, two sharped edged knife, two redmi mobiles and Rs.2000/- cash at before Cw5 and Cw6 Panchas by drawn an seizer mahazar. Said seizer mahazar he got identified, same now at marked as per Ex.P12 and signature of the Witness as per Ex.P12(a). Seized all material object subjected in PF No. 70/2017. He can identified said material object. P.W.10 identified one photograph as it bears the auto, now already got marked as per Ex.P10, two iron rods, two sharp edged knifes, two redmi mobiles and Rs. 2000/- cash now already got marked as per MO1 to MO8. On 14.08.2017 as per the discloser statement of A2, PW10 seized one TVS Apche motor cycle bearing its No. KA05 HO 8118 which was parked at infront of the house of A2 situated as Sarai palya at before Panchas Cw7 and CW8. Said seizer mahazar he can identified, same now already got marked as per Ex.P6 and signature of the Witness as per Ex.P6(c). Seized motor cycle subjected into the 13 S.C.No. 1977/2018 PF No. 71/2017. On the same day PW10 called the complainant and recorded the statement in so far identification of Accused and identification of material object. On 31.08.2017, PW10 got collected wound certificate pertains to Cw1. He can identified said wound certificate. The same wound certificate already got marked as per Ex.P9 and signature of the Witness as per Ex.P9(b). On 05.10.2017 since of attain the finality of investigation PW10 submitted the charge sheet against the accused to the court. Cw1 gave a statement as per Ex.P2. Cw2 gave his statement as per Ex.P4. Cw8 gave his statement as per Ex.P8. In the cross examination it elicited No identification mark that the PW10 issued to his staff to patrol the accused. No notice in writing issued to neither of the Panch witness.
20. As per the charge leveled against to the accused, it is net case of the prosecution that on 20.07.2017 at night 1.15 am., within the limits of Amruthhalli police station, Hebbal Ring road, In front of Shriram Properties, at service road, CW1 and CW2 were robbed by the accused Nos. 1 and 2 along with other two accused after causing grievous hurt to the CW1 and CW2. To attribute an charge under section 397 of I.P.C., that it need two factum should be proved by the prosecution. One is causing injury to victim and another one is recovery of material objects alleged to be subject matter of robbery. With this background the evidence of CW1 and CW2 is take more significant role in so far first point that I herein formulate for determination. Case on record though CW1 and CW2 have examined before the Court as PW1 and PW2, PW1 and PW2 turned hostile in total except, 14 S.C.No. 1977/2018 they identified their signature available on complaint as per Ex.P1 as per Ex.P1(a) and Ex.P1(b) respectively. Further case on record CW14 Dr. B.N. Prakash examined as PW8. According to testimony of PW8, PW1 have taken medical treatment at before PW8 with the history of assault on that particular day of incident. With that respect PW8 further deposed that he issued Ex.P9 wound certificate and his signature as per Ex.P9(a). No doubt Ex.P9 and oral testimony of PW8 have say something about the prosecution case. But, unfortunately PW1 and PW2 who are alleged to victim of the crime turned hostile and not supported to the prosecution case. With this observation that I am of the view that the prosecution have failed to prove that the ocular evidence corroborated with the medical evidence. Therefore the testimony of PW8 and Ex.P9 document will not helpful to the prosecution case.
21. Another one point that I formulated herein for determine the case of the prosecution that recovery of material alleged to be subject matter of robbery. To that an fact the testimony of PW10 and seizer mahazar as per Ex.P12 as well as seizer mahazar Ex.P6 is take more significant role. As per the testimony of PW10, PW10 recovered one Bajaj Auto Rikshaw bearing its No. KA03-AD-4524, Two iron rods, two sharp edged knives, Two Redmi mobiles and Rs. 2,000/- cash at the possession of the accused. The same above all material got marked as per M.O.1 to M.O.8. According to the prosecution M.O.1 to M.O.8 seized by the PW10 after drawn an seizer mahazar as per Ex.P12 and his signature as per Ex.P12(a).
15 S.C.No. 1977/2018Further prosecution case that the accused No. 2 Abraham voluntarily produced one TVS Appache motorcycles bearing its No. KA05-HO-8118 which was parked at infront of house of the accused NO.1. the same TVS Appache motorcycles freeze by the PW10 after drawn on seizer mahazar as per Ex.P6 at before CW7 and CW8. At this movement I again perused the contents of the complaint. As per the contents of the complaint, the Accused Nos. 1 and 2 along with other accused robbed one Redmi mobile, one Dell laptop and one purse which bears cash. Admittedly case on record, the prosecution failed to got marked any laptop as alleged. True that M.O.1 to M.O.8 material objects seized by the PW10 after drawn an Ex.P12 seizer mahazar at before CW5 and CW6 panchas. Though CW5 examined as PW4, P.W.4 not supported to the prosecution case. Further inspite of repeated issuance of coercive process against to CW6, CW6 have not secured before the Court. When go through testimony of P.W.1 and 2 in so far M.O.5 and 6 Mobile and M.O.7 & 8 currency notes, P.W.1 and 2 never speak anything about to M.O.5 & 6 mobile as well as M.O.7 & 8 currency notes are belonging to them. With this respect P.W.1 and 2 turned hostile and even lengthy cross-examined by the Learned Public Prosecutor nothing of evidence elicited through the mouth of P.W.1 and 2 with respect M.O.5 & 6 mobile are belonging to P.W.1 and 2 and currency notes as per M.O.7 & 8 belonged to the P.W.1 and 2. Hence that I am of the view that that there is a clear doubt on the prosecution case in so far alleged robbery of M.O.5 & 6 mobile and M.O.7 & M.O.8 currency notes. Further it also pertinent to note there that as per the prosecution case one 16 S.C.No. 1977/2018 of the Dell laptop also a material object which was subject matter of alleged robbery. Case on record the same Dell laptop failed to brought on case record to attribute an charge against the accused. Though PW10 stated about to Ex.P6 and Ex.P12 seizer mahazar, Ex.P6 and Ex.P12 seizer mahazar have not supported by the panch witnesses. With this observation the prosecution case creates doubts upon the charge alleged to attribute against to the accused. Therefore, I answer the above point in the Negative and proceed to pass the following:-
ORDER Acting under Section 235(1) of Cr.P.C., the accused No.1 and 2 are acquitted for the offences punishable under Section 397 of IPC.
The personal bond and surety bond executed by the accused Nos. 1 and 2 shall be continued for further period of 6 months from today as a compliance of Section 437-A of Cr.P.C.
The articles marked as MO.1 to 8 and Ex.P10 Auto rickshaw shall be preserved for trial of the accused No.3 and 4.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court on this the 6 th day of April, 2022).
(R. ONKARAPPA) 17 S.C.No. 1977/2018 LIIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Pradeep P.W.2 Ramakrishna P.W.3 Shivakumar P.W.4 BPN V.P. P.W.5 Gopalaiah P.W.6 Shashikumar P.W.7 Murthy P.W.8 Dr. P. N. Prakash P.W.9 Venkatesh P.W.10 Srinivas Raju
LIST OF WITNESSES EXAMINED FOR DEFENCE: - NIL LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P1 - Statement of CW1
Ex.P1(a) - Signature of PW1
Ex.P1(b) - Signature of PW2
Ex.P1(c) - Signature of PW5
Ex.P2 - Statement of PW1
Ex.P3 - Mahazar
Ex.P3(a) - Signature of PW2
Ex.P3(b) - Signature of PW3
Ex.P3(c) - Signature of PW4
Ex.P3(d) - Signature of PW5
Ex.P4 - Statement of PW2
Ex.P5 - FIR
Ex.P5(a) - Signature of PW5
18 S.C.No. 1977/2018
Ex.P6 - Seizer mahazar
Ex.P6(a) - Signature of PW6
Ex.P6(b) - Signature of PW7
Ex.P6(c) - Signature of PW10
Ex.P7 - Statement of PW6
Ex.P8 - Statement of PW7
Ex.P9 - Wound Certificate
Ex.P9(a) - Signature of PW8
Ex.P9(b) - Signature of PW10
Ex.P10 - Auto Rikshaw photo
Ex.P11 - Report
Ex.P11(a) - Signature of PW10
Ex.P11(b) - Signature of CW13
Ex.P12 - Seizer mahazar
Ex.P12(a) - Signature of PW10
LIST OF DOCUMENTS MARKED FOR DEFENCE:- NIL LIST OF MATERIAL OBJECTS MARKED:-
M.O.1 and 2 - Knives M.O.3 and 4 - Iron rods M.O.5 and 6 - Two Mobile M.O.7- Three notes of Rs. 500 face value M.O.8- Five notes of Rs. 100 face value (R. ONKARAPPA) LIIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.