Bangalore District CourtState Of Karnataka By vs In: A3. Amjad Ali on 27 April, 2015IN THE COURT OF THE LXVI ADDL. CITY CIVIL &
            SESSIONS JUDGE,BANGALORE CITY

         DATED THIS THE 27TH DAY OF APRIL, 2015

        Present: Smt. Usharani, B.A.(Law),LL.B.,
                 LXVI Addl.City Civil & Sessions Judge,
                 Bangalore.

                        S.C.No.669/2011 & 790/2009


Complainant:                State of Karnataka by
                            DJ Halli Police Station,
                            Bangalore City.

                            [Represented        by        Public
                            Prosecutor ]
                                - Versus -
                                -
Accused in:                 A3. Amjad Ali, S/o Iliyaz,
S.C.No.669/2011             Aged about 26 years,
                            Raghavappa Block,
                            III Cross, DJ Halli,
                            Bangalore.

Accused in:                 A2. Idris
S.C.No.790/2009             S/o Ahamed,
                            26 years, No.16/1, I Cross,
                            Govindarapura, Bangalore

                        (A3-By Sri.SSK
                         A2- xx Advocates)
                        (A1 and A4 absconding)
Date of commission of 4.10.2008
offence
Name of the Complainant Police Officer
                        DJ Halli Police Station
                        Bangalore

Date of Arrest of accused   A2 & 3: 23.1.2009
                                    2


person
Date of release of accused A2: 7.5.2010
persons                    A3: 4.5.2009

Charges against the          Under Sec. 341, 307, 356 r/w 34
Accused Persons              ofIndian Penal Code.


Date of Commencement A2: SC790/09: 18.10.2012
of trial             A3: SC669/11: 11.04.2012

                             Sc:790/09 was clubbed        with
                             SC:669/2011 on 6.8.2014.
Date of closure of trial     3.3.2015
Opinion of Court             Accused are acquitted.


                               JUDGMENTThe accused were charge sheeted by Police Sub

   Inspector, DJ Halli Police Station, Bangalore for the offences

   punishable underSec. 341,307,356r/w 34 ofIndian Penal

   Code.2. The facts of the case are that:That on 4.10.2008 at about 9 p.m. when CW.4 was

   answering nature call behind tank Mohalla, Opposite to Kajus

   house at Modi road , DJ Halli, Bangalore accused No.2 and 3

   along with absconding accused No.1 and 4 demanded money

   with him, when he replied that he does not have amount,

   accused persons with common intention attacked him.       The

   accused No.3 and 4 caught hold of him and accused N.1 and 23used deadly weapons on him, Accused No.2 assaulted him with

Baku on his head and hand and caused hurt to him.      Since

CW.1 had intervened accused No.3 and 4 wrongfully restrained

him and accused No.1 and 2 assaulted him with Baku on his

shoulder with an intention to kill him. Hence, accused have

committed an offence punishable underSec. 341,307,392,398r/w 34 ofIndian Penal Code.3. The Police Inspector of DJ Halli Police Station has

filed charge sheet before the XI ACMM, Bangalore and after

taking cognizance of the offence, case was registered in CC

No.24124/2009.        The copies of prosecution papers were

supplied to the accused persons as required u/sec. 207 ofCode of Criminal Procedure. Thereafter case was committed

to court of Sessions on 2.5.2009 after splitting the case

against accused No.1 and 3 with a direction to file separate

charge sheet against them. Thereafter Hon'ble Prl.City Civil

& Sessions Judge, Bangalore assigned the case to this court

for   disposal   in     accordance   with   law   by   giving

SC.No:790/2009 since accused 3 has remained absent

case against him was split up and given S.C.669/2011.

Accused are on bail.       Accused No.2 is represented by4Sri.YAR,     Accused   No.3   is   represented   by   Sri.SSK,

Advocates.4. After hearing both the sides, Charge was framed

against the Accused Nos. 2 and 3 for the offences

punishable u/sec. 392 r/w 398, 341 r/w 34 and 307 r/w

34 ofIndian Penal Codeand read over to them who have

pleaded not guilty of the offences and claimed to be tried by

this court. Thereafter, case was posted for trial. During the

course of trial since case SC:790/2009 was clubbed with

SC:669/2011 prosecution has examined PW.1 to PW.4 and

got marked Exs.P-1 to P.4 and MO.s 1 and 2, then

statements of the accused were recorded u/sec. 313 ofCode

of Criminal Procedure. The accused have denied all the

incriminating evidences of prosecution witnesses and have

led no defence evidence.5. Heard the learned public prosecutor and the learned

advocate for the accused and the matter was posted for

judgment.6. The following points arise for my consideration:i.   Whether the prosecution provessatisfactorily that accused No.2 & 3along with absconding accused No.s 1and 4 on 4.10.2008 at about 9.005p.m. within the limits of DJ Halli
       police station behind Tank Mohalla,
       Opposite to Khaja's house, Modi road,
       DJ Halli, Bangalore, when CW.4 was
       answering natures call demanded him
       money and when he replied that he
       had no money accused No.3 along
       with absconding accused No.4 caughthold him and accused Nos.1 and 2who were armed with deadly weapon
       like longs (baku) used them and
       accused No.2 caused hurt to CW.4 by
       assaulting with long on his head and
       accused No.1 assaulted him with long
       on his hand and committed an offence
       punishable underSec.392r/w 398 ofIndian Penal Code?ii.    Whether the prosecution proves
       satisfactorily that on the same date,
       place and time accused No.3 alongwith absconding accused No.1 and 4and accused no.2 Idris in furtherance
       of common intention caused wrongful
       restraint to CW.4 Syed Ali and
       committed an offence punishable
       underSec.341r/w 34 ofIndian Penal
       Code?iii.   Whether      the   prosecution proves
       satisfactorily that on the same date,
       place and time accused No.3 alongwith absconding accused Nos. 1 and 4and accused No.2 Idris in furtherance
       of common intention attacked CW.1
       Syed Pasha on his intervention in the
       incident and accused No.2 Idris along
       with accused No.1 Tannu assaulted on
       his shoulder with long with such
       intention or knowledge and under
       such circumstances that by that act if
       he had caused his death accused6Nos.1 and 2 would have been guilty of
                    murder and committed an offence
                    punishable underSec.307of Indian
                    Penal Code and accused No.3 along
                    with   absconding    accused     No4
                    committed an offence punishable
                    underSec.307r/w 34 ofIndian Penal
                    Code?iv.     What order?7. From the available materials on record my findings

to the above points are as follows:Point No.1:   In the Negative
                  Point No.2:   In the Negative
                  Point No.3:   In the Negative
                  Point No.4:   As per the final order for the
                                following:REASONS8. Point No.1 to 3: The CW1/PW.1 is the complainant

and injured in this case who has lodged complaint alleging that

when CW.4/PW.3 was answering natures call 4-5 unknown

persons demanded money with him and when he replied that he

does not have amount they have assaulted him on his head and

both hands. When PW.1 intervened one of them assaulted him

with knife on his left shoulder and caused bleeding injury to

him.   It is also stated in the complaint that he or his brother

PW.3, does not know their names or address. It is further stated

in Ex.P.1 that, immediately his wife Zamin Taj along with one7Afrose took them to the Hospital, and during the said incident he

had lost Rs.15,000/- and a gold chain. It is important to note

here that the learned Public Prosecutor has argued that the

charge sheet has been filed in this case during 2009 and number

of times NBW has been issued against the accused persons

which shows the subsequent conduct of the accused persons.Hence, it is clear that they are involved in the commission of an

offence.    The eye witnesses and injured persons have deposed

regarding how accused persons have attacked them and what all

injuries sustained by them.      Hence, non examination of other

witnesses will not come in the way of prosecution.9.      Per contra learned advocate for the accused drew the

attention to the evidences of PWs 1 to 4 and argued that though

PW.1 has given evidence with regard to the incident he has not

identified the accused No.3 and has specifically deposed that he

had come to rescue them. Further according to PW.1 there were

13 persons at the spot. Most important fact is that PW.1 to 3

have turned hostile and hence Public Prosecutor has cross-

examined them, but has failed to elicit any fact which is

favourable to the prosecution.10. It is pertinent to note here that initially evidence of PW.1

was recorded in a split up SC:No.669/2011 against accused

No.3 Amjad Ali and in the examination-in-chief, it is deposed by8PW.1 that when he learnt that some persons attacking            his

brother, he was sleeping at his house and hence, rushed to the

spot where he found 13 persons attacking his brother on his

head with beer bottle and he had identified four of them they

were Tannu, Ibris, Kullu and Amjad Ali.     Further it is deposed

by PW.1 that Tannu had knife and others were found holding his

brother and Tannu and Igris assaulted him with bottle and when

he intervened Tannu and igris have also assaulted him on left

side of his back and shoulder with long and knife. However, he

had also deposed that accused before the court has went to

rescue him. It is important to note here that accused before the

court on that day was accused No.3 Amjad Ali.          Hence, it is

pertinent to reproduce said portion of evidence of PW.1, which

runs thus:£ÁåAiÀiÁ®AiÀÄzÀ      ªÀÄÄAzÉ     EgÀÄªÀ     DgÉÆÃ¦      dUÀ¼À

©r¸À®Ä §A¢zÀÝ DzÀgÉ WÀl£ÉAiÀÄ°è ¥Á¯ ÉÆÎArgÀ°®è .11.   Further according to PW.1 accused had assaulted his

brother with bottle and hence, piece of bottle were pierced on his

head and caused bleeding injury. The said portion of evidence of

PW.1 runs thus:£À£Àß      vÀªÀÄä¤UÉ       vÀ¯ ÉUÉ     ¨Ál¯ ï¤AzÀ     ªÀÄvÀÄÛ

ZÁPÀÄ«¤AzÀ        ºÉÆqÉ¢zÀÝjAzÀ      vÀ¯ ÉUÉ     vÀÆvÀÄUÀ¼ÀÄ9©zÀÝªÀÅ         ¨Ál¯ ï£À     ZÀÆgÀÄUÀ¼ÀÄ            ZÀÄaÑzÀÝªÀÅ

gÀPÀÛUÁAiÀÄªÁVvÀÄÛ .12. It is pertinent to note here that this is a new fact which

has been deposed by PW.1 in his chief examination before the

court. Further important fact is that even during the course of

cross-examination conducted by learned public Prosecutor the

PW.1 has deposed that accused No.3 had went to rescue his

brother.13.     Further PW.1 has also deposed that his wife Zameena

Taj took them to the hospital.       As noted supra it is stated in

Ex.P.1 that Jameena Taj and Afrose took PW.1 and 3 to the

hospital, but both of them were not cited as witnesses in this

case, which is fatal to the case of prosecution.14. Interesting fact is that during the course of cross-

examination of PW.1 by learned Public Prosecutor it is deposed

by him that he had not given further statement as per Ex.P.3. It

is important to note here that in Ex.P.3 it is stated that

Pukathikali and Amjad Ali (A3) have caught hold of PW.3 and

Ibris assaulted him with knife on his head, Tannu assaulted on

his hand and when PW.1 went to rescue his brother Pukathikali

and Amjad Ali (A3) assaulted him and Igris (A2) and Tannu

assaulted him.1015. After clubbing the Sessions case No.790/2009 in the split

up SC.No:669/2011 learned Public Prosecutor has further

examined PW.1 and got marked MOs 1 and 2 (longs) as the

weapons    used   by   accused    persons   for   assaulting   them.

Thereafter advocate for the accused No.1 has cross examined

PW.1 on 8.8.2014 and PW.1 has denied involvement of accused

No.2 in the alleged offence and also denied giving further

statement. It is deposed by PW.3 in his chief examination that

when accused No.2, Tannu, Shabir and Alida were answering

natures call, he had questioned them immediately they have

assaulted him with sickle on his head , shoulder and legs.

Further he had also deposed that they have also assaulted PW.1,

but when Public Prosecutor has cross examined PW.1 he has

specifically deposed that A.3 was not present at the spot.

Further he had denied giving statement as per Ex.P.4.             At

another juncture he had also deposed that he does not

remember as to whether accused No.2 and Tannu assaulted his

brother.   Surprising fact is that in the cross examination it is

deposed by both the witnesses that accused No.2 and 3 were not

present at the spot and not involved in the incident and they are

seeing them for the first time.16. The PW.4 has registered FIR, Ex.P.5 on receipt of

complaint Ex.P.1 and he had deposed before the court that he11had prepared Mahazar Ex.P.2 in the presence of CW.2 and 3 and

handed over further investigation to PW.14.      But CW.2/PW.2

has turned hostile and CW.3 has remained absent before the

court.17.   Inspite of issuance of summons and NBW to the

witnesses to the seizure mahazar i.e. CW.8 and 9 and to the

doctor CW.7, who alleged to have treated PWs 1 and 2 and the

alleged eye witnesses i.e. CW.5 and 6 they have remained absent

before the court.     Even the investigating Officer has also

remained absent before the court.18. It is pertinent to note here that two longs were marked as

MOs 1 and 2 before the court. As noted supra according to PW.1

accused persons have assaulted with beer bottle. But beer bottle

or pieces of beer bottle were not produced before the court and

there is no explanation for non seizing the same. Further it is

stated in the Ex.P.1 that during the said galata PW.1 has lost

Rs.15,000/- kept in his pocket and gold chain in his neck.

However, there is no clear evidence with regard to the said fact

and there is no evidence with regard to what has happened to it.

Most important fact is that there is no clear evidence regarding

involvement of accused No.2 and 3 in the alleged incident. More

over there are lot of contradictions in the evidence of prosecution

witnesses. Therefore I opine that prosecution has miserably12failed to prove the guilt of the accuse persons beyond reasonable

doubt. Hence, the accused No.2 and 3 are entitled for acquittal.

Accordingly I answer points No.1 to 3 in the Negative.14. Point No.4:-       For the foregoing reasons, I proceed

to pass the following:ORDER

         Acting underSection-235(1)of Code of

     Criminal Procedure, accused Nos.2 and 3 are

     acquitted of the offences punishable under

     Section 392r/w 398, 341 and 307 r/w 34 ofIndian Penal Code.Their bail bonds and surety bonds stand

     cancelled.Order on MOs 1 and 2               are kept in

     abeyance      till the disposal of split up case

     against accused Nos.1 and 4.Keep the original of this Judgment in SC:669/2011

     and copy in SC.790/2009.(Dictated to the Judgment Writer, transcribed by her, script
thereof revised, corrected, signed and then pronounced by
me in the open Court on this the 27th day of April 2015.)

                                   (Usharani)
                  LXVI Addl.City Civil and Sessions Judge,
                                    Bangalore13ANNEXURE

THE WITNESSES EXAMINED ON BEHALF OF THE
PROSECUTION;PW1         Syed Pasha
PW2         Rajan
PW3         Syed Ali
PW4         C.T.KrishnappaTHE WITNESSES EXAMINED ON BEHALF OF THE
ACCUSED ;NIL

THE DOCUMENTS MARKED FOR PROSECUTION;Ex.P.1                Complaint
Ex.P.1(a)
Ex.P.1(b)             Copy of original complaint
Ex.P.2                Mahazar
2(a)                  Copy of the Mahazar
2(b)                  Signature of PW.2
2(c)                  Signature of PW.4
Ex.P.3                Further Statement
3(a)                  Portion of further statement
Ex.P.4                Statement

THE DOCUMENTS MARKED FOR DEFENCE;
       Nil

List of Mo's :

M.O.1 & 2: Longs


                              (Usharani)LXVI Addl.City Civil & Sessions Judge,
                              Bangalore.