Acquittal On Inadequate Grounds
T.C JUDGMENT
6th Criminal Chamber
Main: 2016/ 5144
Decision: 2017 / 411
Decision Date: 20.02.2017
Case and Judgment: The judgment rendered by the Local Court was appealed by the defense of defendants … and …, and the file was discussed according to the nature, type of punishment, duration and date of the crime:
Since it was not put forward within the legal period, the request of the defense of the defendants … and … for a trial review is rejected in accordance with Article 318 of the Code of Criminal Procedure No. 1412 through Article 8/1 of the Law No. 5320,
I- The examination of the judgments against the defendants … and …;
The non-application of Article 58 of the TCC to the defendant …, who has a conviction in his criminal record, has not been made a reason for reversal since there is no counter-appeal.
According to the contents of the file and the minutes of the hearing, the favorable evidence collected and examined and discussed at the decision, the reasoning and the appreciation of the Board of Judges, the objections of the defense counsel of the defendants … and … were not deemed appropriate, and therefore, the judgment, which is in accordance with the procedure and the law, except for the criticism, is APPROVED in accordance with the request,
II- As for the examination of the judgment against the accused …;
According to the occurrence and file content, on 08.04. 2016 at night hours near the old prison, when it was reported that there were people fighting in the vehicle with the license plate number …, the perpetrators of the incident beat the complainant …, the driver of the commercial taxi with the license plate number …, and escaped from the scene by getting into the commercial taxi used by the complainant, did not stop at the Ilgın Security Directorate checkpoint and fled from the scene by getting into the commercial taxi in the area of responsibility of Kadınhanı Regional Traffic Station …. It was determined that they were involved in a traffic accident with material damage by hitting the car with the license plate number from behind, that they were stopped and caught by the officers of the Kadınhanı District Security Directorate 20 km away from …, and that … and … were in the vehicle,
In the law enforcement statement of the complainant …. dated 08.04.2016, “… I agreed with the owner to use the commercial taxi with the license plate number … for 40 TL per day. On 08.04.2016 at around 21:30, I was waiting at the taxi stand. The male person who asked for a taxi, who did not give his name, addressed me and said ‘I am at …, can you pick me up and take me home? I agreed and got into my vehicle with license plate number ….. When I was going to …, three male persons stopped me on the road. I know one of them … The first person was slightly thin, tall, blond. The third person was tall, with short black hair. They got into my vehicle. … took 50 TL out of his pocket and gave it to me, then said, ‘Uncle, drive, we are going to …’. When I said ‘… I can’t go to …, what are we going for?’, he said, ‘We are going to bury a man, so what if you are the man we are going to bury’. As we continued on our way, I realized that their intentions were not good and we came in front of the old prison. I turned towards the police station. They realized that I was going to the police station. The person sitting in the front seat … first hit me with his fist, then the people sitting in the back seat started to hit me with their fists on my head and face. While they were hitting me, they all said in one voice, ‘We will kill you, we will fuck your mother, we will kill you’. I thought they were going to kill me, I became unable to drive the vehicle, I pulled the handbrake, I stopped the vehicle. In the meantime, they prevented me from getting out of the vehicle. … asked for the 50 TL he had given me when he first got into my car. I took it out of my pocket, and when I was about to give it to him, … forcibly took the 200 TL money I had on me. Then they all beat me and threw me on the ground. Meanwhile, seeing the police team coming 50 meters away, … started the vehicle with the key on the vehicle. They usurped my vehicle and drove off in the direction of the industry at a fast speed. I know that the second person was also from Şahbaz but I do not know who the third person was.” In his prosecution statement dated 09.04.2016, he stated that ‘…on 08.04.2016 around 21:30 while I was working in a taxi, three male persons stopped me from …’s place. One of them was M. son …. They got into the vehicle. … took out 50 TL from his pocket and gave it to me. ‘Drive the car, we are going to …’ he said. I said, ‘I can’t go.’ There was an argument between us. When I asked him why we were going to …, he laughed and said, ‘We are going to bury a man, we met with …, you will give us the taxi’. Then … hit me in the face with a fist. Two people sitting in the back seat also started hitting my head and face with their fists. They did not threaten or insult me, they did not say ‘We will kill you’. I don’t know why I made such a statement at the police station. I may have said that because I was very hurt. Then … asked me for the money he had given me. While I took 50 TL out of my pocket, I gave 250 TL in my pocket voluntarily. I have no enmity with these people. I definitely did not insult them with the intention of slander.” During the prosecution phase, he said, ‘I received a phone call from the owner of the commercial taxi I was driving around 20.00-20.30. He said, ’We have a customer at ….‘s, you will go there’. Sometimes when we answer the phone late, the phone goes straight to ….’s phone. When I left my customer, I went to …’s place. I took … from there, and there were three people with …. I got … out, but I couldn’t get the other one out. It was slightly dark, I don’t know who was sitting right behind me. They told me they were going to … and gave me 50 TL. When I said I couldn’t go, an argument started between us. Meanwhile the car was traveling. When I got to the prison I stopped the car. They told me that they were meeting with…. In the meantime they beat me. I got angry because …. didn’t inform me and I gave back the 50 TL and got out of the car saying ‘See what happens to you’. I was in front of the car. A person other than …. hit me from behind, but I don’t know who that person was. At that time there were three people in the car except me. No one got out on the road. No passenger got out at Gülmece Park either. So when I was at the prison, there were four people in the car, including me. I don’t know if the third person was …, but I know that I saw … I was not in a position to see anything when I got out of the car. I could not identify … when he was shown to me in the courtroom. I am not pressing charges. I got angry and got out of the car without even taking the ignition out of the car and at that moment I was angry with …, he didn’t tell me the truth of the incident. I just wanted to save myself. … said the words ‘We are going to bury a man, what if you are the man I am going to bury’, but … had been in my car before and they were joking like this. When I got out of the car, I told the police that they robbed me, but I don’t know what I did due to stress, there was no looting incident. I gave the 200 TL and 50 TL in my hand on my own. I wanted the incident to end at that moment.” In the prosecutor’s statement dated 09.04.2016, the complainant … said ”… and I agreed about three months ago for 40 TL per day to work as the driver of the vehicle with the license plate …. From that date onwards, … used the taxi. … and I have known each other since childhood. On 08.04.2016, around 20:30, … called me. When he told me that he needed a taxi to go to …, I told him that I would arrange a taxi for him. At that time, I had guests. I forgot to call… Abi about this matter. Later… Abi called me on the phone and told me that he and … had an argument and that … had taken the car. I went to the police station. I learned that the vehicle had an accident. I am not a complainant because of the damage to my vehicle.”, and during the prosecution phase, he made the following statement: ”On the day of the incident, I talked to my friend … by phone around 19:30. We had met face to face before. First, the taxi’s phone was called, if the phone was off or busy, it was transferred to me. I told …. that there was a customer at … and directed him there. I had not informed …. that we had spoken to …. Later, around 20:30-21:00, I received a phone call from …. He called me to the police station. When I went to the police station, I learned that such an argument had taken place between them. Later, I told him that I was aware of it and that I forgot to inform him. I am not pressing charges. I gave my prior consent for the car to be taken away.”
In the statement of the defendant … in the presence of the defense counsel dated 09.04.2016, he said: “On 08.04.2016, … received a phone call in the evening. We decided to go to … together. … called a taxi by phone. A commercial taxi arrived, whose license plate number I did not know. We got in the taxi and said we wanted to go to … The taxi driver said he couldn’t take us. … called the owner of the taxi and talked to him. The owner of the taxi told him to take the taxi and go. We told the taxi driver that we would take the taxi and go to the province of … … gave the taxi driver an unknown amount of money. The taxi driver got out of the vehicle near the old prison. … took the driver’s seat to drive the car. We set off together. There were not three people in the vehicle as the taxi driver claimed. We certainly did not extort, assault, insult or threaten him. I do not know how he was injured. As we were leaving the vicinity of the prison, a police car did not come near us. He did not give us a stop warning and did not follow us.” In his prosecutor’s statement dated 09.04.2016, he said: ”On 08.04.2016 around 21:00, we drank alcohol at our house together with …, the son of my aunt … and …, the son of my uncle. Afterwards, … said that his friend …, who was in Abi …, was in hospital and that he was going to visit him. He called his good friend …, whose taxi he had taken before, and asked for his taxi. When we arrived at the old prison, we dropped off the driver, left … at Gülmece Park and set off for …. There were no arguments, insults, threats or injuries when we left the driver and there was no police vehicle following us”, during the prosecution phase, ”…While we were in the car … had an argument with the taxi driver, they agreed between them. I couldn’t understand the reason for the argument, because I was sitting in the back. The taxi driver cursed …, whereupon … hit him and he hit him back.
In the statement of the defendant …. before the defense on 09.04.2016, he said: “On 08.04.2016, in the evening hours, we received news that my friend named … was ill in … province. … and I decided to go to … province to visit him. I called the taxi with the license plate …, which I knew because I had hired a taxi before, from my cell phone and asked him to come to the vicinity of …. After 5-10 minutes, the taxi driver … whom I did not know before and whose name I later learned due to the incident, arrived at the location we had called. … and I got into the vehicle and told him that we wanted to go to the province of …. The taxi driver said that he could not go to the province of …. I told him that we knew the owner of the taxi, …, and asked him to take us. The taxi driver said he could not take us. I told him that then we would pay the taxi fare, he should give us the taxi, we would go to the province of … and come back. The taxi driver agreed. I gave the taxi driver the 100 TL fare in advance. We had 300 TL cash on us. We bought cigarettes on the way. I don’t know how much money I had left on me. We let the taxi driver out of the vehicle in front of the old prison. We set off with … towards the province of …. I was driving the vehicle. There were not three people in the vehicle as the taxi driver claimed. I do not know how he was injured. When we left the vicinity of the prison, no police car came to us.” In his prosecutor’s statement dated 09.04.2016, he said: ”On 08.04.2016 at around 21:00 with … and my aunt’s son … we called a taxi to visit my friend who was ill in the province of …. This taxi belonged to … whom I had known since my childhood. I called … and asked him if we could go to … by taxi and he said we could. I met the taxi driver … in front of …. We told him that we had gotten permission from the owner of the vehicle…. When he didn’t believe us, we had an argument. I had him call ……. When he said ‘Give us the car’ … gave us the car. We were going to buy the car for 100 TL. I paid in advance. I had 200 TL left in my pocket. Then we bought cigarettes on the way. We got the driver out of the vehicle in front of the prison, but we did not insult or threaten him. We got … out of the vehicle at Gülmece Park and set off towards ….”, and at the stage of prosecution he said ”…The incident was caused by a complete misunderstanding, I definitely did not take the complainant’s money, I did not call … by phone, we met face to face with him. In my statement at the police station under the influence of alcohol, I said that I called, my current statement is true. Although I said that I did not hit the complainant …, I now admit that I did, because I could not say it because I was scared under the influence of alcohol. He hit me and I hit him. … was in the car at first, he got out at Gülmece Park. There was no fight between us until he got out.”
In the prosecutor’s statement of …. dated 09.04.2016, he said: “On 08.04.2016, around 21:00, I saw … and … in a state of intoxication at the house right next to … from the Çay neighborhood. I was not intoxicated. They told me that they had called a taxi and that I should come with them. They didn’t tell me where they were going or what they were going to do. They let me out of the vehicle at Gülmece Park. I definitely did not beat the taxi driver. I did not forcibly take money and the taxi from him. I did not insult and threaten him, I do not accept the accusations.”, at the stage of prosecution, ”…I was not in the car in the incident of taking money in the car mentioned in the complainant’s statement, I got out of the car before reaching the prison, so I am not the person seen in the camera recording,
In the forensic report, it was stated that the complainant was injured in a way that could be eliminated by simple medical intervention,
In the expert report on the examination of the CCTV camera records showing the scene of the incident, it was stated that the front left door of the commercial taxi was opened halfway, but no one got out, it remained open for a while, after a while the back left door of the commercial taxi was opened and a person got down and went towards the front left door, There was shoving at the left front door of the commercial taxi and a person got out from the back of the taxi and that person went towards the left front door, they pushed the driver down at the left front door and another person came from the front of the vehicle and three people pushed the driver of the vehicle at the left front door of the vehicle, In the incident where it was stated that another person wanted to sit in the driver’s seat, but the driver of the vehicle tried to prevent this situation, the person who got on the driver’s seat got off again and pushed the driver of the vehicle towards the center median and two people got into the vehicle, another person hid towards the center median when he saw the police team coming, the driver of the vehicle in the center median saw the police team and ran towards the police car, in the meantime, it was determined that the persons who noticed the police team quickly left the scene with the commercial vehicle,
In the face of the fact that the expert report and the incident report are compatible with the statements given by the complainant at the first stage, and that the complainant stated in his subsequent statements that a third person was not left on the road, instead of the conviction of the defendant … for the crime of looting, the defendant … was acquitted in writing with a justification that was not appropriate and sufficient by relying on the statements aimed at saving the defendant from the crime and making a mistake in the evaluation and appreciation of the evidence,
Since the appeal objection of the Public Prosecutor of that place was deemed appropriate in this respect, it was decided unanimously on 20.02.2017 that the verdict be DISMISSED in accordance with the request for the reason explained.