Bangalore District Court
R.T.Nagar Police Station vs 2/04/2019 on 1 December, 2020
IN THE COURT OF XXXII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
PRESENT: SRI.HATTIKAL PRABHU.S.
M.A.,LL.M.,
DATED THIS THE 01st DAY OF DECEMBER 2020
Serial Number of the C.C.19091/2019
case
Name of the State by Police Sub Inspector,
complainant R.T.Nagar Police station
(Reptd. by Sr.Asst.Public
Prosecutor )
Name of the accused 1.Adithya.M,
persons S/o.Gopala,
Aged about 33 years,
2. Shobha Bai,
W/o.Gopal,
Aged about 53 years
Both are R/at.No.85/1 Gangothri,
2nd main, Adhikabeer Ashram
Road, Mothinagara, R.T.Nagar,
Bangalore.
(Reptd.by Smt.S.G...Adv., )
ate of commencement 11.04.2019
of offence
Offences complained U/Secs. 354(A), 354(D) and 504
of of the IPC
Date of arrest of Accused No.1 arrested on
accused 12/04/2019
Accused No.2 not arrested,
appeared before the court on
15/04/2019
C.C.19091//2019
Date of release of Accused No.1 releaed on
accused on bail 12/04/2019
Accused No.2 released on
15/04/2019
Date of 31.10.2019
commencement of
recording evidence
Date of closure of 18.12.2019
recording evidence
Offences Proved Nil
Plea of the accused Not guilty
and his examination :
Final Order : Accused Not found guilty
Date of final order 01.12.2020
JUDGMENT
U/Sec.355 of the Cr.P.C., This is a criminal case arisen out of the charge sheet submitted by the WPSI of R.T.Nagar P.S against accused no.1 and 2 for the offences punishable U/s 354(A), 354(D) and 504 of the IPC in Crime No.80/2019.
2. The brief facts which are necessary to decide this matter are as under:-
2(a). The C.W.1-Kum.Swathi is tenant under C.W.2-Sri.Gopala Rao Yadav at house no.85/1, 2 nd main, C.C.19091//2019 Adi Kabir Ashrama road, Mothinagar at R.T.Nagar. The tenanted house of C.W.1 is situated at the 2 nd floor in the building.
b). The accused no.1 by name Adithya who is the son of the owner -C.W.2 used to proceed to talk with C.W.1 frequently and the C.W.1 used to refuse to talk with accused no.1. On this aspect the C.W.2 advised the accused no.1. For this reason the accused no.1 and his mother accused no.2 were unhappy.
c). On 11.04.2019 the accused no.1 and 2 with intention to harass the C.W.1 removed the electricity fuse and disconnected the power supply to the house of C.W.1 at around 10.10 P.M.
d). When the C.W.1 came to the house of accused no.1 to enquire about disconnection of the power supply the accused no.1 caught hold C.W.1 tightly and pulled the hand of C.W.1 and touched her inappropriately and thereby molested the C.W.1. When the C.W.1 pushed the accused no.1, the accused no.1 abused the CW.1 in filthy language.
C.C.19091//2019
e). At that point of time, the accused no.2- Smt.Shobha Bai came from inside the house and abused the C.W.1 in filthy language and stated that they would not connect power supply to her.
Thereby the accused no.1 and 2 committed the above said offences.
3. After submitting the charge sheet cognizance of the alleged offences is taken and criminal case against the accused no.1 and 2 came to be registered. The accused no.1 and 2 appeared before court, the accused no.1 and 2 are on bail. Sec. 207 of Cr.P.C is complied by furnishing the copy of the charge sheet to the accused no.1 and 2.
4. After hearing before charge since this court finds sufficient reasons to proceed further, charge is framed against accused no.1 and 2, same is read over to accused no.1 and 2. Accused no.1 and 2 pleaded not guilty and claimed to be tried.
C.C.19091//2019
5. Since the accused no.1 and 2 not pleaded guilty, the matter is posted for recording evidence on behalf of prosecution. On behalf of prosecution in all evidence of PW.1 to 5 adduced and the documents got marked at Ex.P1 to 3.
6. After closure of the prosecution evidence the accused are examined U/s.313(1)(b) of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused no.1 and 2 is separately read over to the accused no.1 and
2. The accused no.1 and 2 denied all such circumstances as false. The accused no.1 and 2 did not choose to adduce defense evidence. No documents are got marked on behalf of accused no.1 and 2.
7. Heard both sides.
8. Now the points that arises for the determination of this court are:
1). "Whether the prosecution proves beyond all reasonable doubt that on 11.04.2019 at C.C.19091//2019 10.10 P.M at house no.85/1, 2nd main, Adikabir Ashrama road, Mothinagar, accused no.1 took of the fuse of the house of C.W.1 and when she asked the accused no.1, he pulled the C.W.1 and made sexual advance by touching C.W.1 inappropriately and abused and outraged her modesty and thereby committed the offences punishable U/s 354-
D and 354-A of the IPC?
2). "Whether the prosecution proves beyond all reasonable doubt that on 11.04.2019 the accused no.1 and 2 abused C.W.1-Swathi in filthy language knowingly that it would give provocation to C.W.1 to breach public peace and thereby accused no.1 and 2 committed the offence punishable U/s 504 of the IPC.?
3). What order?
After considering the arguments submitted from both sides and after careful appreciation of both the oral and documentary evidence placed on record, my findings on the above points are as under:
Point No.1: in the Negative Point No.2: in the Negative Point No.3: as per final order-
C.C.19091//2019
-for the following.....
REASONS
9. Point No.1 and 2 : Both point no.1 and 2 are interlinked, in order to avoid repetition of facts in the discussion and for the sake of convenience, both point no.1 and 2 are taken up together for discussion.
10. In order to prove the guilt of the accused, the prosecution examined the C.W.1 as P.W.2. The P.W.2 in her evidence explained the incident. Through this P.W.2 the complaint and spot mahazar are marked as Ex.P.2 and 3. The P.W2 partly turned hostile to the case of the prosecution.
11. C.W.3 and 4 are examined as P.W.4 and 3 claiming to be spot mahazar witnesses. These witnesses fully turned hostile to the case of the prosecution and their evidence is not helpful to the case of the prosecution.
C.C.19091//2019
12. C.W.5- Head constable examined as P.W.1 and he deposed that he secured the accused no.1 and produced before C.W.8- I.O and submitted report as per Ex.P.1 to the I.O.
13. C.W.8 I.O examined as P.W.5 and this witness in her evidence explained that she secured the accused no.1 through C.W.5 and 6, arrested the accused no.1 and produced before court and she recoreded statement of C.W.2 and thereafter submitted charge sheet against accused no.1 and 2.
Under these circumstances the evidence of P.W.1 and 5 not taking material role in deciding the guilt of the accused.
14. Learned Sr.Asst. Public Prosecutor given up examination of C.W.6-police constable who secured the accused no.1. The prosecution failed to secure C.W.2 who is cited as eye witness as well as circumstantial witness. The prosecution also failed C.C.19091//2019 to secure C.W.7 Head constable who registered the crime, conducted spot mahazar and conducted initial investigation. Sufficient opportunity has been given to the prosecution to secure C.W.2 and 7, but the prosecution failed to secure C.W.2 and 7.
15. The defence of the accused no.1 and 2 is total denial of the case of the prosecution. Further it is contention of the accused no.1 and 2 that there is dispute between C.W.1 and accused persons relating to tenanted house and on some other issues and out of said hostility the C.W.1 lodged false complaint against accused no.1 and 2 with intention to harass the accused no.1 and 2.
16. At this juncture I would like to reproduce Sec. 354-A, 354-D and 504 of the IPC, which reads as under:
Sec.354-A of IPC- A man committing any of the following acts-
1. physical contact and advances involving unwelcome and explicit sexual overtures; or C.C.19091//2019
2. a demand or request for sexual favours; or
3. showing pornography against the will of a woman; or
4.making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
354-D. Stalking.--(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of C.C.19091//2019 prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.]
504. Intentional insult with intent to provoke breach of the peace.--
Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
C.C.19091//2019 In view of the ingredients of the above said provisions of law the entire burden lies on the prosecution to prove that the accused no.1 molested the C.W.1 and accused abused C.W.1 in filthy language knowingly that her act would provoke the C.W.1 to breach public peace.
17. On looking to the evidence of P.W.2-prime witness it is clear that there is serious dispute between the accused persons and C.W.1 relating to the tenanted house in which the C.W1 is residing. It is undisputed fact that the C.W.1 is tenant under C.W.2. C.W.2 is none other than the husband of accused no.2 and father of accused no.1. The accused no.2 claiming that the C.W.1 is having illicit affair with C.W.2. It appears that this suspicion of accused no.2 is the cause for the dispute. It is irrelevant in this case to examine whether the C.W.1 and 2 are having affair or not. But it is relevant fact for consideration that there is hostility between the parties.
C.C.19091//2019
18. In the decision reported in:
(2005) 10 SCC 498(Ramashish Rai Vs. Jagdish Singh), the following observations were made by the Hon'ble Supreme Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
I perused the said decision. In view of the law laid down in the above said decision coupled with the existence of hostility in this case, this court comes to the conclusion that extra care is required in appreciating the evidence on record.
19. In this background, on looking to the papers, this court noticed that admittedly P.W.3 and 4 spot mahazar witnesses are the friends of the C.W.1. Both P.W.3 and 4 fully turned hostile to the case of the prosecution. Even though the witnesses are friends of C.W.1, they did not support the case of the C.C.19091//2019 prosecution as to drawing mahazar on the spot by the I.O. Apart from that the P.W.2 informant of crime herself deposed that she does not know about drawing mahazar on the spot and police took her signature on the Ex.P.5-mahazar in police station. The evidence of P.W.1, 3 and 4 satisfactorily establishing that the I.O did not visit the scene of offence and mahazar is not drawn on the spot. This aspect adversely affects the case of the prosecution and it leads to suspect the case of the prosecution.
20. According to the case of the prosecution, on 11.04.2019 at about 10.10 P.M the C.W.1 came to the house of the accused persons in order to enquire as to power cut and at that time the accused no.1 caught hold of the hands of C.W.1 tightly and molested her and thereafter accused no.2 came from inside the house and accused abused C.W.1.
21. Contrary to the case of the prosecution, the P.W.2 in her chief examination itself deposed that on C.C.19091//2019 11.04.2019 at 10 P.M somebody disconnected power supply to her house, she came out of the house and enquired accused no.2 about removal of the power connection. For that the accused no. 2 stated that they will do like that as she wants the C.W.1 to vacate the house. At that time the accused no.2 was telling that the C.W.1 was having affair with husband of accused no.2. Further P.W.2 explained that when this discussion was going on between herself and accused no.2, accused no.1 came and pulled her hands and molested her and accused no.2 abused her.
22. On careful perusal of the explanation of the P.W.2 as to the manner in which incident took place, it is crystal clear that the evidence of P.W.2 is absolutely contrary to the case of the prosecution. On the other hand the evidence of P.W.2 clearly establishes that the incident as explained in Ex.P.1- complaint, has not occurred. This aspect leads to draw inference that the C.W.1 lodged false complaint against accused no.1 and 2, in the background of C.C.19091//2019 hostility between them and with intention to harass the accused no.1 and 2. This aspect fully supports the defence of the accused.
23. Further this court noticed that the C.W.2 Gopal Rao Yadav who is husband of accused no.2 is star witness in this case. Prosecution did not examine C.W.2 even after giving sufficient opportunities. In the background of uncorroborated evidence of P.W.2 and in the background of hostility between the parties, non examination of C.W.2 adversely affects the case of the prosecution. Apart from that except the evidence of P.W.2-interested witness, no satisfactory evidence is placed on record to prove the case of the prosecution. As I have above stated the evidence of P.W.2 is not trust worthy and reliable to act upon. With this observation this court held that the prosecution failed to establish the guilt of the accused No.1 and 2 beyond all reasonable doubt. Accordingly I answer point no.1 and 2 in the Negative.
C.C.19091//2019
24.Point No.3: In view of my finding on point no.1 and 2, the accused is entitled for acquittal. With these observations as an answer to the point no.3, I proceed to pass the following...
ORDER Acting U/s.248(1) of Cr.P.C., I hereby acquit the accused no.1 and 2 for the offences punishable U/secs. 354-A, 354-D and 504 of IPC.
Accused no.1 and 2 are set at liberty forthwith and the bail bond of the accused stand canceled.
(Judgment dictated to the Stenographer, typed by her computerized copy corrected and then pronounced by me in the open court on this the 01st day of December 2020).
(Hattikal Prabhu .S) XXXII Addl.C.M.M. Bangalore.
:ANNEXURE:
1.List of Witnesses examined on behalf of the prosecution:
C.C.19091//2019 P.W.1: Sri.Kemparaju.A.L-Head constable P.W.2: Ms.Swathi.M P.W.3: Sri.Syed Mohammed P.W.4: Sri.Yogeshwar P.W.5: Smt.Premakumari.K.S- WPSI
2. List of Documents marked on behalf of the prosecution:-
Ex.P.1:-Report Ex.P.1(a): Signature Ex.P.2:-Complaint Ex.P.2(a): Signature Ex.P.3: Mahazar Ex.P.3(a,b,c): Signatures
3.:- List of witnesses and documents marked on behalf of the accused Nil
4. List of Material objects marked on behalf of the prosecution:
Nil (Hattikal Prabhu.S) XXXII Addl.C.M.M. Bangalore.