Bangalore District Court
State By vs S. Manjunatha on 31 December, 2015
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-70)
Dated this the 31st day December, 2015
Present : Sri. K.R. Nagaraja, B.A., L.L.B.
LVI Additional City Civil & Sessions
Judge, Bengaluru City.
C/c LXIX Additional City Civil &
Sessions Judge, Bengaluru City.
: SESSIONS CASE NO.1170/2012 :
COMPLAINANT : State by:
Kodigehalli Police Station,
Bengaluru.
(By Sri. S.V. Bhat, Learned Public
Prosecutor )
-V/S-
ACCUSED : S. Manjunatha, @ Manju,
S/o Shivanna,
Aged about 31 years,
R/at No.50, 13th A Cross, 3rd Main,
Agrahara Dasarahalli,
Near Varun Medical Store,
BENGALURU-79.
(By. Sri. S.M. Advocate).
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1. Date of commission of offence : 04.07.2011
2. Date of report of occurrence : 04.07.2011
3. Date of commencement of evidence: 27.03.2013
4. Date of closing of evidence : 16.04.2015
2
Judgment S.C.1170/2012
5. Name of the complainant : PW.3 Puttamma.
6. Offence complained of : U/s 394 and 397 of
Indian Penal Code
7. Opinion of the Judge : Offences punishable
U/Sec.394 and 397 are
not proved. Offence
U/Sec.324 of Indian
Penal Code is
established.
8. Order of sentence : Accused is sentenced for
rigorous
imprisonment of Two Years
and fine of Rs.
Rs.5,000/- in default shall
undergo S.I. for Six months
for the offence punishable
U/Sec.324 of IPC
: JUDGMENT :
Accused has been facing instant trial for the offences punishable U/Sec.394 and 397 of Indian Penal Code.
2. The nub of the prosecution case is as follow:-
PW.4 Lavanya is the daughter of PW.3 Smt. Puttamma. PW.1 Smt. Mamatha and PW.2 Smt. Nirmala are the neighbours of the house of PW.3 Puttamma. PW.4 lodged First Information Statement with PW.10 Chandrasekhar. K., Police Inspector of complainant police station as per Ex.P1, on 4/7/2011 at 19.45 3 Judgment S.C.1170/2012 hours in Sri. Sai North Side House with the presence of doctor to the following effect;
PW.3 Puttamma along with her husband Mr. Muthanna, who is working as an Attender at GKVK, were residing at Door No.2025, Manjunath Nilaya, 1st Main Road, 9th Cross, Sanjeeveni Nagar, Bengaluru-02. PW.3 Puttamma and PW.4 Lavanya who is the daughter of PW.3 were in the above house. On 4/7/2011 at 12 noon two unknown persons came and asked PW.3 and 4 to the effect that whether there is Muthanna in the house?. PW.3 and PW.4 told unknown persons that Muthanna, who is the husband of PW.3 had gone to his office. The said unknown persons had gone back by saying that they will meet at the office of Muthanna. Very same unknown persons again came near above house of PW.3 at 4.30 p.m. of the same day and they suddenly entered the above house. Said unknown persons attempted to stab PW.3 Puttamma with knife. PW.3 attempted to rescue herself from the stab from unknown persons and she held knife with her both arms. Both arms sustained grievous injuries. Said unknown persons have snatched two line of gold mangalya chain from the neck of PW.3. Said mangalya chain contained one mangalya, two laxmi coin, 2 4 Judgment S.C.1170/2012 balls, 2 hawalas and two karimani totally measuring 80 gms. PW.3 Puttamma and her daughter PW.4 Lavanya screamed loudly. Said unknown persons fled from the crime scene. PW.3 has further reported to the effect that unknown persons snatched her gold mangalya chain by causing grievous hurt to her with knife. With submission of above report and information, PW.3 Puttamma sought to initiate action against unknown miscreants and to trace her gold chain.
3. PW.10 Chandrashekar, police inspector/investigation officer of complainant police station, who reduced the above information of PW.3 in writing with the presence doctor returned back to police station and registered Cr.No.153/2011 for investigation of offence punishable U/Sec.394 and 397 of Indian Penal Code and forwarded First Information Statement as per Ex.P5. PW.10 again rushed to crime scene, where drew panchanama as per Ex.P2 with the presence of PW.4 Lavanya. PW.3 Puttama produced M.O.2 and 3 saying that she worn them at the time of incident and they became blood stained. PW.10 seized M.O.2 and 3 and subjected them to Property Form. On 13/7/2011 police personals, who were appointed by PW.10 to trace the 5 Judgment S.C.1170/2012 accused, took accused on the same day at Ring Road of Bhadrappa Layout and produced accused at 15.30 hours on the same day. PW.10 subjected accused for interrogation and recorded his voluntary statement. Accused alleged to have made the submission as per Ex.P6 and confessed the commission of above offence by him and his friend Sanju, who has been absconded and shown as absconded accused in the charge sheet. Based on the information disclosed by accused herein, PW.10 recovered M.O.4 black colour bag from the bush near Ring Road with the presence of panchas through mahazar as per Ex.P4. PW.10 found M.O.5 and 6 in the said M.O.4 bag. PW.10 got identified accused from PW.1 to 4 and recorded their statement. He recorded the statement of police personal. PW.11 Punith Kumar, police inspector of complainant police station, who took up further investigation from PW.10 received Ex.P3 wound certificate. He attempted to trace another accused. He could not succeed in tracing another accused. He prepared charge sheet for the offence punishable U/Sec.394 and 397 of Indian Penal Code against this accused and another accused Sanju, who has been shown as abscondee with allegation that this accused and another 6 Judgment S.C.1170/2012 absconded accused, on 4/7/2011 at 4.30 p.m. in the house at Door No.225, 1st Main, 9th Cross, Sanjeevini Nagar, all of a sudden entered the above house and they stabbed on two arms of PW.3 Puttamma with knife and caused grievous hurt and they snatched gold mangalya chain weighing 80 gms worth of Rs.1,50,000/- and thereby committed the alleged offences. PW.11 forwarded charge sheet prepared by him along with materials collected during the course of investigation to Hon'ble committal court. Hon'ble committal court after examination of charge sheet and its supporting materials took cognizance and ordered to register case on 15/6/2012. Consequently, C.C.No.14743/2012 on the file of committal court was registered against this accused and another accused for the offence punishable U/Sec.394 and 397 of Indian Penal Code. Hon'ble committal court by order dated 8/8/2012 was pleased to split C.C.No.14743/2012 against A2 and ordered to register separate case against A2. Hon'ble committal court, after compiled the provision of Sec.207 of Code of Criminal Procedure committed the case to Hon'ble Sessions Judge, Bengaluru City U/Sec.209 of Code of Criminal Procedure. In pursuance of order of 7 Judgment S.C.1170/2012 committal, case on hand registered in above number and assigned to this court for disposal in accordance with law.
4. Accused appeared through his advocate. Learned predecessor of this court found material to presume commission of offences punishable U/Sec.394 and 397 of Indian Penal Code by order dated 29/1/2013. Charge was framed for the above offences on the same day. Contents of charge were read over and explained to the accused. Accused pleaded not guilty and claimed to be tried.
5. Prosecution out of 15 witnesses got examined 11 witnesses as PW.1 to 11. Learned public prosecutor gave up CW.11 to 13. Prosecution failed to examine CW.11 Mahadeva, who stated to be the police personal assisted to arrest accused. Prosecution got marked 8 documents exhibited as Ex.P1 to P8 and got identified M.O.1 to 6. After completion of evidence of prosecution, accused was examined U/Sec.313 of Code of Criminal Procedure. Accused denied all incriminating evidence appeared against him. Accused got marked one document exhibited as Ex.D1.
8
Judgment S.C.1170/2012
6. Heard the arguments of learned public prosecutor. He would urge to convict accused for the alleged offences as materials available on record are abundant and sufficient to hold accused guilty for the alleged offences with all beyond reasonable doubt.
7. Heard counsel for accused. He would contend that evidence of PW.3 and 4, which is not supported by independent witnesses is not believable as they are interested and there was no identification parade conducted to identify the accused. He would further contend that the evidence of PW.3 is not reliable as she failed to disclose the name of assailants either before doctor or in her First Information Statement. He would further contend that the version of prosecution is not proved with beyond all reasonable doubt. Ultimately learned counsel for accused sought to acquit accused for the alleged offences. He has pressed into service following case laws;
1. AIR 2003 SC 2471 in case of Visveswaran V/s State.
2. AIR 2000 SC 160 in case of Rajesh Govind Jagesha V/s State of Maharashtra.
3. AIR 1988 SC 345 Chhabi Nath V/s State of U.P.
4. AIR 1970 SC 1321 in case of Budhsen and another V/s State of U.P. 9 Judgment S.C.1170/2012
5. (2007) 4 SCC 415 in case of Chandrappa and others.
6. 2011 (4) AIR Kar. R. 566 in case of Aziz alias Abdul Aziz & Anr. V/s State of Karnataka.
7. 2013 (2) KCCR 1156 (DB) in case of State of Karnataka through Athani P.S. V/s Kallappa Somanna Kamble and others.
8. 2014 Crl.L.J. 2495 in case of Thimmareddy and others V/s State of Karnataka.
8. Perused the papers.
9. In the light of above materials following points fall for decision making of this court:-
1. Whether the prosecution proves with all beyond reasonable doubt that on 4/7/2011 at 4.30 p.m. present accused along with absconded accused Sanju entered the house No.2025, 9th Cross, 1st Main, Sanjeevininagar armed with knife and they robbed gold mangalya chain weighing 80 gms worth of Rs.1,50,000/- from PW.3 Puttamma and they have stabbed Puttamma with knife and caused grievous hurt to her and thereby accused committed an offence punishable U/Sec.394 of Indian Penal Code?
2. Whether prosecution further proves with all beyond reasonable doubt that on the above date time and place accused and absconded accused Sanju committed robbery punishable U/Sec.392 of Indian Penal Code and at the time of committing said robbery this accused used deadly 10 Judgment S.C.1170/2012 weapon i.e., knife and caused grievous hurt to PW.3 Puttamma and thereby accused committed an offence punishable U/Sec.392 r/w Sec.397 of Indian Penal Code?
3. What order?
10. This court on appreciation of available materials, with reference to prevailing legal aspects, give findings to the above points as follows:-
POINT NO.1 - Negative.
POINT NO.2 - Negative;
POINT NO.3 - Prosecution able to prove the offence
punishable U/Sec. 324 of Indian
Penal Code against
accused with all beyond reasonable
doubt and as per final order on the
following;
: REASONS :
11. POINTS 1 & 2:- As these points are interconnected
have been discussed together.
It is a canon of criminal jurisprudence that prosecution to bring home guilt of accused with production of cogent and satisfactory evidence. Defence of accused in the present case is a total denial of the case of prosecution. Accused has denied the charge leveled against him. As noted supra, prosecution relies on 11 Judgment S.C.1170/2012 oral testimonies of PW.1 to 11, documents of Ex.P1 to 8 and material objects of M.O.1 to 6.
12. Before appreciate the available materials, at the outset, it is necessary to advert on the undisputed facts involved in the case on hand. Prosecution has alleged commission of offence punishable U/Sec.394 and 397 of Indian Penal Code. To hold accused guilty for the above both offences, prosecution to prove that accused committed robbery. Definition of robbery has been well defined in the provision of Sec.390 of Indian Penal Code. To hold guilty for the offence punishable U/Sec.390 of Indian Penal Code i.e., for an offence of robbery there must be a commission of either offence of theft or offence of extortion. Provision of Sec.378 of Indian Penal Code clearly defines offence of theft. As per Sec.378 of Indian Penal Code, there must be an element of taking of possession of moveable property dishonestly without consent of the person, who is in possession of said property. Therefore, to attract any of the above noted provisions, including the alleged offences involved in the case, moveable property is the material factor. Indisputably, it is not the case of prosecution that either PW.10 or PW.11 recovered gold mangalya chain of PW.3, which 12 Judgment S.C.1170/2012 alleged to have been robbed by accused and absconded accused. Prosecution has not placed the said moveable property i.e., gold neck chain before court. As per provision of Sec.394 of Indian Penal Code following ingredients to be proved by prosecution (1) that the accused committed or attempted to commit was concerned in the commission of robbery; (2) that in doing so the accused or some other person so concerned caused hurt;
(3) that the hurt was caused voluntarily.
As per Sec.397 of Code of Indian Penal Code prosecution to prove the following ingredients (1) the commission of robbery or dacoity;
(2) that the accused ---
(a) used a deadly weapon, or
(b) caused death or grievous hurt;
(3) that he did so at the time of committing the robbery or dacoity.
13. On careful reading of the above provisions prosecution to establish commission of robbery of accused in the present case. When the moveable property i.e., gold neck chain of PW.3, which alleged to have been robbed by accused is not produced, directly court of law can form an opinion that prosecution fails to establish either offence punishable U/Sec.394 or offence punishable 13 Judgment S.C.1170/2012 U/Sec.397 of Indian Penal Code. Thus the prosecution fails to prove the ingredients of both penal provisions. Therefore, accused is not liable to be convicted for the above offences.
14. With the above noted scenario, let us appreciate the available materials. PW.3 Puttamma is the victim of alleged crime of accused. PW.4 is the daughter of PW.3. She said to have witnessed the act of accused being co-dweller in the house of PW.3. PW.3 Puttamma has given evidence to the effect that when herself and her daughter PW.4 Lavanya had been in her house on 4/7/2011 at 12 noon, two unknown persons came to her house and asked them whereabouts her husband Muthanna and she replied to unknown persons that her husband had gone to office. She has further given evidence to the effect that the very same unknown persons came on the same day in the evening at 4.30 p.m. and asked her at what time her husband would come and they during the course of conversation with her, displayed knife and asked her to show whatever property possessed by them and they also attempted to point knife towards her neck and they attempted to stab on her neck with knife and she held knife, as a result of which she sustained injury in her both palm and 14 Judgment S.C.1170/2012 thereafter, one of the unknown person snatched her mangalya chain from her neck and thereafter, they fled from the crime scene place after arrival of neighbours, who arrived as a result of screaming of PW.3. She has also detailed the weight and value of her gold mangalya chain. She has further given evidence to the effect that she was admitted to North Side Hospital which situated near her house by her daughter PW.4 Lavanya. She has also further given evidence to the effect that police came to her house and recorded her statement etc., PW.4 Lavanya, who is the daughter of PW.3 has given evidence in the same line of her mother PW.3. PW.1 Mamatha, who is said to be the neighbour of PW.3 Puttamma has given evidence to the effect that on 4/7/2011 at 4.30 p.m., when she was in her house, received screaming sound from the house of Puttamma and thereafter, herself and PW.2 Nirmala, who is also another neighbour rushed near the house of Puttamma and they found that two persons ran away from the house of Puttamma and she and others attempted to nab the said persons and they did not succeed in nabbing the said persons and she found injury in both the hands of PW.3. PW.1 Mamatha also identified the M.O.1 knife and also accused before court with 15 Judgment S.C.1170/2012 definite evidence that the very same accused ran away from the house of PW.1. It is important to note that examination in chief of PW.1 Mamatha was made on 27/3/2013. Cross-examination of PW.1 was deferred on the request of counsel for accused. On 6/4/2013 cross-examination of PW.1 taken as nil as counsel for accused failed to cross-examine her. Again on the application of accused and order of court, PW.1 was again cross-examined on 16/4/2015. In the cross-examination PW.1 while admitting the incident which claimed by PW.3 and 4, also admitted the suggestion that she saw accused and M.O.1 at first time before court and she did not saw any circumstances on 4/7/2011 at 7 p.m. Thus PW.1 although supported the occurrence of incident in her examination in chief, but turned hostile to the version of prosecution on identifying the accused in her cross-examination. PW.2 Nirmala, who is also neighbour has given evidence in the same line of PW.1 Mamatha. Her examination-in-chief was made on 27/3/2013. She was also cross-examined, on 3/12/2014. In the cross-examination, PW.2 admitted that she came to house at 10 p.m. on that day and she did not witness the incident as well accused and first time she has been seeing the accused before 16 Judgment S.C.1170/2012 court. Thus, PW.2 Nirmala turned hostile to the version of prosecution in her cross-examination. Learned public prosecutor cross-examined PW.1 and 2 after treating them as a hostile witnesses. Evidence of PW.1 and 2 is not believable on the involvement of accused for the commission of alleged crime as they might have won over by the accused. Nevertheless, evidence of PW.1 Mamatha, on the incident as claimed by PW.3 and 4 remained unchallenged. Evidence of PW.1 is believable on the occurrence of incident as claimed by prosecution and not against accused. Thus, PW.1 to 4 are the material key witnesses in the present case. PW.3 Puttamma in her cross-examination has specifically identified the accused that present accused and another came to her house in the afternoon of day on which incident occurred and again they came to their house and they did the alleged act. Evidence of PW.3 is remained unshaken on the identity of accused for commission of crime against her as alleged by the prosecution. PW.4 Lavanya also identified the accused with definite evidence that this accused and another came to the house in the afternoon of the day of incident and again they came to house and snatched mangalya chain from her mother Puttamma 17 Judgment S.C.1170/2012 by causing hurt to her mother with knife. She has also stated and supported the manner, in which crime operated and executed by this accused as alleged by the prosecution. Therefore, evidence of PW.3 and 4 on the commission of alleged offence by this accused and another is credible and reliable one. Their evidence has not been discredited before court. There are some minor discrepancies regarding statement of PW.1 at police station and also arrival of police to her house. These are minor and negligible discrepancies which did not come in the way to discard the evidence of PW.3 and
4. Evidence of PW.3 and 4 abundantly establish that this accused and another came to the house of PW.3 and 4 at 12 noon of the day of incident and again they came to the house of PW.3 and 4 at 4.30 p.m. and they committed robbery by snatching chain of PW.3 and caused hurt to PW.3.
15. PW.5 Raghavendra, who is the panch witness to the Ex.P2 mahazar turned hostile to the version of prosecution. PW.6 Naveen Kumar, who is the neighbour of PW.3 given evidence to the effect that police came to the house of Puttamma on 4/7/2011 at 8 p.m. in the night and drew panchanama in the said house as per Ex.P2 and he also found scuttled articles in the house. Evidence 18 Judgment S.C.1170/2012 of PW.6 tested in the cross-examination. He has admitted that he is the son-in-law of PW.3 Puttamma. Merely because PW.6 is son in law of PW.3, it does not mean that his evidence to be discarded. PW.6 struck to his above version in the cross-examination. Therefore, evidence of PW.6 is believable. PW.7 Rangaswamy, who is the Head Constable has given evidence to the effect that he and other police personal caught the accused herein on 13/7/2011 near Ring Road of Bhadrappa Layout and produced him before investigation officer. Evidence of PW.7 remained unchallenged. PW.8 Dr. Kiran, Medical Officer of North Side hospital has given evidence to the effect that he examined PW.3, who came for treatment on 4/7/2011 at 6.30 p.m. and found cut injuries on palms of both hands and also cut injuries on the right ring finger and he issued wound certificate as per Ex.P3. He has opined that above injury sustained by PW.3 is grievous in nature. He has also opined that above injury could be caused from the use of M.O.1 knife. He has stated that above injury of PW.3 could be caused in the manner in which PW.3 stabbed in the alleged crime. Evidence of PW.8 tested in the cross-examination. In the cross-examination he has admitted that he referred PW.3 to Ortho Surgeon for further 19 Judgment S.C.1170/2012 treatment after he gave first aid treatment. He has further admitted that "¥ÀæxÀªÀÄ aQvÉì ¤ÃqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è UÁAiÀÄ AiÀiÁªÀ jÃwAiÀÄzÁÝVzÉ JAzÀÄ UÉÆvÁÛUÀĪÀÅ¢®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÀévÀB DªÉÄÃ¯É JPïì-gÉà vÉUz É ÀÄ ±À¸ÀÛç aQvÉì ªÀiÁrzÀ £ÀAvÀgª À Éà UÁAiÀÄzÀ ¥ÀæªÀiÁt UÉÆvÁÛUÀÄvÀz Û É J£ÀÄßvÁÛgÉ. ¥Àæxª À ÀÄ aQvÉì PÉÆqÀĪÀ ±À¸ÀÛç aQvÉì ªÀÄvÀÄÛ JPïìgÉà vÉUÉAiÀÄĪÀ «ZÁgÀ §gÀĪÀÅ¢®è JAzÀgÉ ¸ÁQëAiÀÄÄ JPïìgÉà AiÀÄ£ÀÄß vÉUÉAiÀÄÄvÉÃÛªÉ DzÀgÉ ±À¸ÀÛç aQvÉì §gÀĪÀÅ¢®è J£ÀÄßvÁÛgÉ. ±À¸ÀÛç aQvÉì zÀsÈrüÃPÀgÀt ¥ÀvÀæªÀ£ÀÄß CxÉÆÃð¸Àdð£ïgÀªÀgÀÄ PÉÄÁqÀÄvÁÛgÉ JAzÀgÉ ¸Àj. CxÉÆÃð¸Àdð£ïUÉ UÁAiÀÄ AiÀiÁªÀ jÃw DVzÉ K£ÁVzÉ JAzÀÄ UÉÆvÁÛUÀÄvÀÛzÉ JAzÀgÉ ¸Àj." Learned doctor has further given evidence to the effect that Ex.D1 was given by another Dr. Bhavani, wherein admission of PW.3 shown as 5.25 p.m. Evidence of PW.8 Dr. Kiran is not acceptable to believe the fact that PW.3 sustained grievous hurt as claimed by prosecution. The manner in which PW.8 gives evidence, which noted supra clearly shows that he is not competent person to give opinion on the nature of injury in the absence of x-ray. Indisputably, no x-ray has been produced and no opinion of surgeon, who treated PW.3 has been taken. Therefore, evidence of PW.8 is not acceptable to classify hurt suffered by PW.3 is of grievous in nature. Nevertheless, evidence of 20 Judgment S.C.1170/2012 PW.8 proves Ex.P3 wound certificate. Further evidence of PW.8 fortifies evidence of PW.3 and PW.4 that PW.3 sustained simple hurt i.e., cut injuries on both palms of hands of PW.3 on 4/7/2011 at either 5.30 or 6.30 p.m. Merely because there is a discrepancy on the time regarding admission of PW.3 to the above hospital, it does not mean that PW.3 did not sustain hurt. Moreover, defence has not challenged fact that PW.3 sustained hurt on 4/7/2011 at before 5.30 p.m.
16. PW.9 Bhasakaran has given evidence to the effect that on 13/7/2011 police inspector of complainant police station called him and Mahadeva and seized bag, knife, 4 gloves and thread from the possession of a person, who is in custody through mahazar as per Ex.P4. He also identified material objects, which have been marked as M.O.1 and 4 to 6 before court. He failed to identify the accused before court. Learned public prosecutor cross-examined PW.9 after treating him as a hostile witness. In the cross- examination of PW.9 nothing is elicited on the existence of fact that M.O.1 and 4 to 6 seized from the custody of this accused. Although PW.9 failed to identify the accused but his evidence on seizure of M.O.1 and 4 to 6 on 13/7/2011 is believable along with 21 Judgment S.C.1170/2012 evidence of PW.10 investigation officer who seized them. In the evidence of PW.10 investigation officer nothing is elicited to discard his version on the factum of seizure of M.O.1 and 4 to 6 from the custody of accused. Thus, Ex.P4 mahazar for seizure of M.O.1 and 4 to 6 from the custody of accused is proved from the evidence of PW.9 and 10.
17. In the evidence of investigation officer nothing worthwhile is elicited to disbelieve the existence of above noted facts. From the overall analysis of the available materials, it is abundantly established that on 4/7/2011 at 4.30 p.m. in the house of PW.3, accused and absconded accused voluntarily caused simple hurt to PW.3 with M.O.1 knife. As notes supra, available materials do not establish commission of offence punishable U/Sec.394 and 397 of Indian Penal Code.
18. Our Hon'ble Supreme Court of India in the above case of Visweshwaran was pleased to hold at Para 11 to the effect that the identification of the accused either in test identification parade or any court is not a sine-co-non in every case. In the above case before Hon'ble Supreme Court of India witnesses examined on 22 Judgment S.C.1170/2012 behalf of prosecution did not identify the accused before court. In the present case, it is not in dispute that there was no identification parade as required under law has been conducted. The say of prosecution that material witnesses identify the accused in the police station cannot be believed. Nevertheless, PW.3 and 4, who are material and key witnesses have categorically stated that accused and absconded accused on the day of incident came at 12 noon and again they came at 4.30 p.m. and did the alleged crime. They had occasion to see the accused twice on the material date. They have also identified accused before court with firm evidence. Even though identification parade is not conducted, evidence of PW.3 and 4 is sufficient to believe the fact that accused has been identified by material witnesses. There are no materials to form any other opinion that accused was not involved in the crime. Therefore, above decision of Hon'ble Supreme Court of India will not render any assistance to accused to exonerate him for the established charge. Further our Hon'ble High Court of Karnataka in the above case of Rajesh Govind Jaggesh V/s State of Maharashtra was pleased to hold that accused to be acquitted on benefit of doubt as there is no proper identity of the accused. As 23 Judgment S.C.1170/2012 noted supra in the case on hand, there was a possibility of PW.3 and 4, who are witnesses having seen the accused twice on the material date and at before court. Therefore, this case law also has no application to exonerate the accused before charge. Further our Hon'ble Supreme Court of India in the above case of Harinath was pleased to hold that accused to be acquitted on the ground of doubt as eye witnesses failed to identify the accused in a proper manner. The facts and circumstances involved in this decision are not applicable to the case on hand. Hon'ble Supreme Court of India in the above case of Budh Sen was pleased to lay down the essentials of identification parade and also value of identification evidence. There is no dispute on the principle enunciated by our Hon'ble Supreme Court of India in the above case. Rest of the decisions, which pressed into service by the counsel for accused have no application to acquit accused for the above established offences.
19. In the light of above evidence, it is abundantly established that the accused voluntarily caused hurt to PW.3 with M.O.1 knife on 4/7/2011 at 4.30 p.m. in her house. It is true that the prosecution failed to establish the offence punishable 24 Judgment S.C.1170/2012 U/Sec.394 and 397 of Indian Penal Code against accused. Nevertheless, available materials are sufficient to hold accused guilty for the offences punishable U/Sec.324 of Indian Penal Code. It is also important to note that voluntary cause of hurt to victim in an offence punishable U/Sec.394 and 397 of Indian Penal Code is one of the ingredients. Since the ingredients of offence punishable U/Sec.324 of Indian Penal Code is also part of ingredient of offence punishable U/Sec.394 and 397 of Indian Penal Code, there is no bar to hold accused guilty for the said offence in the absence of charge framed against him. In the result, this court has to acquit accused for the offences punishable U/Sec.394 and 397 of Indian Penal Code and convict him for the offence punishable U/Sec.324 of Indian Penal Code. Accordingly, points 1 and 2 are answered in the negative. In the result, following order to be made;
ORDER In exercise of power vested with this court U/Sec.235(1) of Criminal Procedure Code, it is ordered that accused is acquitted for the offences punishable U/Sec.394 and 397 of Indian Penal Code.
In exercise of power vested with this court U/Sec.235(2) of Code of Criminal Procedure, it is 25 Judgment S.C.1170/2012 ordered that the accused is convicted for the offence punishable U/Sec.324 of Indian Penal Code.
All Material Objects are worthless. They are ordered to be destroyed after appeal time.
Accused is set at free for the offences punishable U/Sec.394 and 397 of Indian Penal Code.
To hear regarding sentence.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 31st day of December, 2015.) (K.R. Nagaraja,) C/c LXIX Additional City Civil & Sessions Judge, Bengaluru City.
ORDER REGARDING SENTENCE AGAINST ACCUSED FOR THE OFFENCE PUNISHABLE U/SEC.324 OF INDIAN PENAL CODE.
Heard accused. Learned public prosecutor prayed to impose maximum punishment for the offence for which accused is convicted. Accused claimed that he is aged 36 years, married and he has shouldered the responsibility of his wife, two children and parents and he was not convicted by any court of law. Counsel for accused would urge to release accused on Probation of Offenders Act as his conduct is appreciable one.
Accused is married. He has responsibility of feeding above noted family members. He was also not convicted by any court of 26 Judgment S.C.1170/2012 law. Offence punishable U/Sec.324 of Indian Penal Code is punishable with imprisonment up to 3 years or fine or both. Having considered the nature of established crime executed by the accused, he is not deserved to take benefit of Probation of Offenders Act. Accused has been acquitted for the offences punishable U/Sec.394 and 397 of Indian Penal Code on the ground that the prosecution failed to secure the property i.e., gold chain which said to have been robbed by the accused. The say of PW.3 and PW.4 on the conduct of accused is taken into consideration; he is not entitled for the benefit under the provision of Probation of Offenders Act.
Having considered the fact that accused was not convicted by any court of law and he is the bread earner of the family consisted wife, his two children and parents, it is proper to impose sentence of rigorous imprisonment for two years and fine of Rs.5,000/-, in default shall undergo simple imprisonment for six months for the offence punishable U/Sec.324 of Indian Penal Code. As per the amended sentencing policy, it is also necessary to compensate PW.3 Puttamma, who suffered injury from the act of accused. Having considered the nature of injury suffered by PW.3 27 Judgment S.C.1170/2012 Puttamma and probable expenses incurred by her for the treatment, it is proper to order compensation of Rs.20,000/- in favour of PW.3 Puttamma. Accordingly, this court proceeds to pass following, ORDER Accused is sentenced for rigorous imprisonment of two years and fine of Rs.5,000/-, in default shall under simple imprisonment for six months for the offence punishable U/Sec.324 of Indian Penal Code.
Accused shall pay compensation of Rs.20,000/- in favour of PW.3 Puttamma.
Failure of payment of compensation by the accused, PW.3 Puttamma is at liberty to recover the same as per law.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 31st day of December, 2015.) (K.R. Nagaraja,) C/c LXIX Additional City Civil & Sessions Judge, Bengaluru City.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION PW.1 Smt. Mamatha PW.2 Nirmala PW.3 Smt. Puttamma PW.4 Smt. Lavanya 28 Judgment S.C.1170/2012 PW.5 Raghavendra PW.6 Naveen Kumar PW.7 Rangaswamy PW.8 Dr. Kiran PW.9 Bhaskar PW.10 Chandrashekar PW.11 Punith Kumar LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P1 Complaint
Ex.P2 Spot mahazar
Ex.P3 Wound certificate
Ex.P4 Panchanama
Ex.P5 First Information Report
Ex.P6 Self statement
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
M.O.1 Knife
M.O.2 Black stained white cloth
M.O.3 Cloth piece
M.O.4 Bag
M.O.5 Tine thread
M.O.6 Hand gloves.
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED :
Ex.D1 Intimation letter from North Side Hospital
(K.R. Nagaraja,)
C/c LXIX Additional City Civil & Sessions
Judge, Bengaluru City.