Bangalore District Court
State By vs A. Srinivasa on 23 September, 2015
IN THE COURT OF II ADDL. CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE AT BENGALURU,
(CCH-17)
Dated this the 23rd day of September, 2015
:PRESENT:
M. CHANDRASHEKAR REDDY, B.A., LL.B.,
II Addl. City Civil and Sessions Judge,
and Special Judge.
Sessions Case No. 459/2008
COMPLAINANT : State by:
MICO Layout police,
Bengaluru.
(By learned Spl. Public Prosecutor)
-VERSUS-
ACCUSED : 1. A. Srinivasa,
S/o Arjunappa,
Aged about 27 years,
R/o Doddakammanahalli,
Gottigere post,
Bengaluru - 83.
2. Manjunatha @ Manju,
S/o Arjunappa,
Aged about 25 years,
R/o Doddakammanahalli,
Gottigere post,
Bengaluru - 83.
3. Balaraju,
S/o Aralappa,
Aged about 32 years,
R/o Doddakammanahalli,
Gottigere post,
Bengaluru - 83.
Contd..........
2 S.C.No. 459/2008
4. Kiran,
S/o Srinivasa,
Aged about 26 years,
R/o Ramanashri Nagar,
Doddakammanahalli,
Gottigere post,
Bengaluru - 83.
5. Suresh Babu,
S/o Venkataswamappa,
Aged about 30 years,
R/o Vinoba Nagar,
B.G. Road, Bengaluru.
6. Pradeep,
S/o Albert,
Aged about 22 years,
R/o Doddakammanahalli,
Bannerghatta road,
Bengaluru-83.
7. Chandru (case is split up)
8. Babu,
S/o Ramachandrappa,
Aged about 25 years,
R/o Doddakammanahalli,
Bannerghatta road,
Bengaluru - 83.
9. Jagadisha @ Jaggu,
S/o Yashodamma,
Aged about 27 years,
R/o Doddakammanahalli,
Gottigere post,
Bengaluru - 83.
(By Sri S.Shankarappa, Adv)
(Case against A.7 is split up)
1 Date of commission of 18.02.2008
offence
2 Date of report of occurrence 24.02.2008
3 S.C.No. 459/2008
3 Date of arrest of Accused 24.02.2008
4 Date of release of Accused 29.05.2008
on Bail
5 Period undergone in 03 months 5 days
custody
6 Date of commencement of 18.03.2010
recording of evidence
7 Date of closing of evidence 01.03.2012
8 Name of the Complainant M.Jayaram (P.W.1)
9 Offences Complained of Ss.143, 147, 148, 341,
324, 427,307 read with
Section 149 of IPC and
3(1)(x) of SC/ST
(Prevention of Atrocities)
Act, 1989.
1 Opinion of the Judge A-1 to 6, 8, 9 are
0 acquitted of all offences.
JUDGMENT
1. The case arises out of the charge sheet laid by the Investigating Officer against A-1 to 9 for the offences under Ss. 143, 147, 148, 341, 324, 427, 307 r/w Sec.149 of IPC and 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
2. The case of the prosecution can be culled out in brief as follows:
(a) CWs.1 and 2 are brothers and CW.3 is their cousin. On 18.2.2008 around 1 pm CWs.1 to 3 were 4 S.C.No. 459/2008 proceeding on Bannerghatta road in TATA Sumo vehicle bearing registration No. KA-05-Z- 7241 from Kalena-
Agrahara towards Sanjaya Gandhi hospital to visit one Ramu who was admitted therein. It was driven by CW.1. When their vehicle came near Islamiya Institute compound A-1, 4 and 9 came on Santro Car from Doddakammanahalli and forcibly stopped Tata Sumo vehicle. That, accused No.1 by using a long attempted to assault CWs. 2 and 3 and since they escaped, the door of Tata Sumo and the front glass got damaged. CW.1 drove the vehicle in speed and when these witnesses came near Meenakshi temple, A-3 and 5 who were waiting in Maruti Omni city taxi, by using longs and clubs attempted to assault CWs.2 and 3 and in their attempt caused damage to the left door of TATA Sumo. CWs.1 to 3 escaped from the assault and drove further. When they came on Hulimavu Police Station road, A-2, 6 and 8 who were waiting in Maruti Zen vehicle, by using longs and clubs attempted to assault CWs.2 and 3 and caused damage to the left door of the TATA Sumo. By escaping from their assault CWs.1 to 3 came near Guru Garden on 5 S.C.No. 459/2008 Bannerghatta Road around 2 pm and that when their vehicle halted near traffic signal, all the accused who were following them got down from their respective vehicles and in furtherance of their common object by holding metallic longs and wooden club formed an unlawful assembly and that in furtherance of their common object, A-1 to 5 knowing very well that CWs.1 to 3 belong to Adi Karnataka caste coming under Scheduled Caste, humiliated and intimidated them within public view by taking their caste name and wrongfully restrained CWs.1 to 3. Further that, in furtherance of their common object of committing culpable homicide amounting to murder, A-1 by using long hit on CW.1 who lifted his right hand in defence and thereby he sustained simple hurt. CW.2 was sitting on the left side of the vehicle and A-2 forcibly dragged him out of the vehicle and by using a long hit on his arms and head and caused grievous hurt to him. A-6 by using a club assaulted on the arms and neck of CW.1. A-3, 7 & 8 by using clubs and A-4 and 5 by using metallic longs assaulted on the arms, legs and on the face of CW.2 and caused grievous 6 S.C.No. 459/2008 hurt to him. CW.3 who was seated on the back seat was dragged outside by A-3 and that A-1, A-3 and 9 by using longs assaulted on his head, left knee, arms and his face and thereby caused grievous hurt to him. The accused have caused damage to Tata Sumo vehicle resulting loss of Rs.10,000/- to the injured. After the said assault the accused ran away from the spot.
(b) CW.1 immediately shifted CWs.2 and 3 to Sanjay Gandhi Hospital for treatment. CWs.2 and 3 on medical advice were again shifted to Wochardt Hospital, Bannerghatta Road for treatment. After taking treatment for his injury, CW.1 on the same day came before the SHO of MICO Layout Police Station (CW.24) and lodged information (Ex.P.1), at 3.45 pm and based on the same FIR was registered (Ex.P.6) in Crime No.86/2008. CW.24 has commenced investigation and has visited the spot and has drawn mahazar in the presence of CW.1 and panch witnesses in between 4.30 pm and 6.00 pm on the same day and seized broken glass pieces, blood stained tar mud and sample mud from the scene of occurrence (M.Os.1 to 4) and the I.O has also seized blood stained 7 S.C.No. 459/2008 clothes of CWs.1 to 3 (M.Os.5 to9) and subjected them to P.F.
(c) The further investigation was taken up by PI- CW.25 and he has recorded the further statement of CW.1 and since he came to know that the injured were coming under scheduled caste, he sent requisition to transfer the case to the Spl. Court. Subsequently, the investigation was taken over by ACP - CW.26 who has recorded the statement of injured witnesses CWs.2 and 3. He effected the arrest of A-6 to 8 on 24.2.2008 and they were remanded to judicial custody. The Investigating Officer has collected the reports (Ex.P.10 and 11) relating to CWs.1 to 3 as well as the main accused and found that the accused persons belonged to non-scheduled caste whereas injured belonged to Adi Karnataka coming under scheduled caste. The I.O arrested A-1 on 8.3.2008 who was found in a Maruti Omni bearing registration No. KA- 51-2791 along with the weapons used for assault. The seizure mahazar was drawn (Ex.P.4) and the vehicle as well as one club and two longs (M.Os.10 to 12) were seized and subjected to P.F and sent to FSL examination. A-1 8 S.C.No. 459/2008 has given a voluntary statement (Ex.P.10) and has led the Investigating Officer to the spot to scene of occurrence.
(d) The Investigating Officer has produced the weapons used for commission of offence before doctor CW.14 under a letter (Ex.P.13) for his opinion. Further, he has collected the wound certificates relating to injured (Ex.P.7 to P.9) and also report from FSL. The I.O has also recorded the statements of Cws. 4 to 7, 10, 11, 17, 20, 21 and 23. A-2 to 5 and 9 were absconding. The Santro Car bearing registration No.KA-05-MC-8647 was seized and subjected to PF. On completion of investigation, the Investigating Officer has submitted charge sheet to the Court on 17.04.2008 against all the accused, showing A- 2 to 5 and 9 as absconding.
(e) Cognizance of the offences came be taken. Copies were supplied to the accused. Bail application filed by A-1 u/s 439 of Cr.P.C came to be dismissed on 13.5.2008. Subsequently A-1 was granted bail by the Hon'ble High Court in Crl.P.No.1976/2008 and as directed, by accepting surety furnished by A-1, he was released on bail with conditions. Bail application moved 9 S.C.No. 459/2008 by A-6 to 8 on 28.5.2008 was allowed and they were enlarged on bail with conditions.
(f) Accused Nos.2 to 5 and 9 secured anticipatory bail in Crl. P. No.1693/2008 granted by this Court. They surrendered before the Court on 3.7.2008 and were enlarged on bail with conditions. The vehicles which were seized from the accused were released in favour of A-5 by allowing his application with conditions.
3. After hearing both sides and since good grounds were found, charges were framed against the accused on 29.9.2009 for which they pleaded not guilty and claimed for trial.
4. Subsequently A-7 has jumped bail. He could not be secured in spite of issuance of NBW against him. As such, the case against him came to be ordered to be split up and I.O was directed to submit split charge sheet against A-7.
5. The prosecution in support of its case has examined CWs.1, 2, 3, 8, 10, 11, 23, 24, 25, 15, 14 and 26 as PWs. 1 to 12 respectively. In the course of their 10 S.C.No. 459/2008 evidence Ex.P.1 to Ex.P. 13 and M.Os. 1 to 12 were exhibited for the prosecution. In the course of cross- examination of PW.2 and PW.9 Ex.D.1 to D.5 and Ex.D.6 and D.7 came to be marked for the defence. The statement of A-1 to 6, 8 & 9 under Section 313 was recorded by the court on 11.10.2012, wherein the accused have denied the incriminating evidence put to them. They have not let in any defence evidence of their side.
6. Heard both sides.
7. The Ld. Public Prosecutor would contend that the prosecution by placing creditworthy oral and documentary evidence has brought home the guilt of the accused beyond all reasonable doubts. He would urge the court to consider the following points in support of his contentions:
a) The account of injured witnesses PW. 1 and 2 cannot be discredited in any manner;
b) Though injured PW.4 has turned hostile it does not affect the main case;
c) Ex.P.1 information is lodged without any delay and the injured have taken treatment in hospitals with history of assault;11 S.C.No. 459/2008
d) Ex.P.3 spot mahazar stands proved in view of the supporting evidence of PW.1, panch witnesses and I.O;
e) The evidence of PW.1 and PW. 3 and Investigating Officer would prove seizure of M.Os.1 to 9 and that these objects are also identified by PW. 1 & 2;
f) Arrest of A-1 and seizure of M.Os.10 to 12 along with Maruti Omni vehicle under Ex.P.4 stand proved in view of evidence of PWs. 5, 6 and Investigating Officer;
g) The wound certificates Ex.P.7 to 9 are duly proved by the medical evidence placed on record through Doctors PWs.10 and 11;
h) Ex.P.11 would show that the accused are belonging to non-scheduled caste and Ex.P.12 would prove that injured belong to 'Adi Karnataka' coming under Scheduled Caste;
8. Per contra, the Ld. Counsel for the accused would strongly repel the arguments put forth by prosecution and he would canvas the following points in defence of accused:
a) Ill-will or motive to crime not proved and Ex.P.1 is a fabricated document;
b) FIR has been despatched belatedly and received by the learned Magistrate at 8.45 pm.
c) There are severe contradictions and omissions in the evidence of PWs.1 and 2 in regard to the alleged incident.12 S.C.No. 459/2008
d) Ex.P.2 panchanama has been allegedly prepared even prior to registration of FIR.
e) PWs.1 and 2 are not trustworthy witnesses and PW.2 is a rowdy sheeter, which has been elicited in cross-examination and Ex.D.1 to D5 documents.
f) One of the material injured witness PW.4 has fully turned hostile. No independent witnesses have supported Ex.P.4 seizure mahazar;
g) The TATA Sumo in which PWs.1, 2 and 4 were allegedly travelling is not seized and exhibited before the court during trial.
h) No evidence to show that the M.Os.1 and 2 broken glass pieces belonged TATA Sumo vehicle.
i) No specific identification marks on M.Os.10 to 12. The genesis of the case and the alleged chasing of TATA Sumo vehicle during day time is not proved.
j) The discrepancies in the medical evidence of doctors PWs.10 and 11 and the admissions given by them are fatal to the case.
k) No ingredients in the complaint as well as in the evidence for constituting offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act.
9. By placing his reliance on the top-noted contentions and admissions made in the cross-examination of the material witnesses including the police officers and Investigating Officer, the learned counsel for accused would 13 S.C.No. 459/2008 contend that accused have been implicated in a false case at the behest of PWs.1 and 2. To buttress his arguments, he has relied upon the ruling of the Hon'ble Apex Court in Dhanna Kanhiyalal Vs. Stae of M.P reported in AIR 1996 SC 2478.
10. The points that would arise for my consideration are as under:-
1) Whether the prosecution proves beyond all reasonable doubt that A-1 to 6, 8 & 9, on 18.2.2008 at about 2 pm near Meenakshi temple, Bengaluru, formed an unlawful assembly with a common object of committing assault and to murder CWs.1 to 3,and followed their Tata Sumo vehicle in Maruti Omini City Taxi and Santro car near Islamiya Institue Compound and near Guru Garden, and committed rioting armed with deadly weapons like longs and club, with intent to commit said offences against CWs. 1 to 3 and thereby A-1 to 6, 8 & 9 have committed offence under Section 143, 147, 148 r/w 149 of IPC?
2) Whether the prosecution proves beyond all reasonable doubts that the accused Nos.1, 4 and 9 at about 2 pm in front of the compound of Islamia Institute on Bannerghatta road, Bengaluru in 14 S.C.No. 459/2008 prosecution of the common object of assaulting and attempting to murder, caused wrongful restraint to CWs.1 to 3 by obstructing their TATA Sumo vehicle by stopping Santro Car in front of the TATA Sumo vehicle, and thereby wrongfully restrained them from proceeding further and thereby A-1 to 6, 8 & 9 have committed an offence under Section 341 read with Section 149 of IPC?
3) Whether the prosecution proves beyond all reasonable doubts that the accused, on the above stated date, time and place, in prosecution of aforesaid common object, attempted to assault CWs.1 to 3 near Meenakshi temple, again on Hulimavu police station road and later near Guru Garden, and damaged to the left door of the TATA Sumo, and have committed mischief by causing damage to said vehicle and caused loss to CWs.1 to 3 to the tune of Rs.10,000/- and thereby A-1 to 6, 8 & 9 have committed an offence under Section 427 read with Section 149 of IPC?
4) Whether the prosecution proves beyond all reasonable doubts that, on the above stated date, the above accused near Guru Garden on Bannerghatta road, Bengaluru knowing fully well that CWs.1 to 3 belong to Scheduled Caste intentionally insulted and humiliated by abusing them in filthy words saying - ºÉƯÉAiÀÄ ªÀiÁ¢UÀ £À£Àß ªÀÄPÀ̼ÀÄ, 15 S.C.No. 459/2008 ¤ªÀÄ£ÀÄß ¸ÀĪÀÄä£É ©qÀ¨ÁgÀzÄÀ , £ÀªÀÄä ªÉÄÃ¯É UÀ¯ÁmÉ ªÀiÁqÀÄwÛÃgÁ, ªÀiÁ¢UÀ eÁwAiÀĪÀgÁ ¤ªÀÄä£ÀÄß G½¸À¨ÁgÀzÀÄ, PÉÆ¯É ªÀiÁqÀÄvÉÛÃªÉ ë in a public place and within the public view, and thereby A-1 to 6, 8 & 9 committed offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989?
5) Whether the prosecution proves beyond all reasonable doubts that, on the above stated date and time, the above accused near Guru Garden on Bannerghatta road, Bengaluru, in prosecution of aforesaid common object, A-1 by using club and long has intentionally assaulted on right hand of CW.1 and thereby voluntarily caused simple hurt to him and thereby A-1 to 6, 8 & 9 have committed offence under Section 324 r/w 149 of IPC?
6) Whether the prosecution proves beyond all reasonable doubts that, on the above stated date and time, the above accused near Guru Garden on Bannerghatta road, Bengaluru, in prosecution of aforesaid common object, all the accused by using clubs and longs, with an intention to murder CWs.2 & 3 have grievously assaulted on them on their vital parts and thereby A-1 to 6, 8 & 9 have committed offence under Section 307 r/w 149 of IPC?
7) To what order?
My findings to the above said points are as follows: 16 S.C.No. 459/2008
Point No.1 to 6 :- In the Negative;
Point No.7:- As per final order for the following:
REASONS
11. POINT No.1 to 6: To avoid repetition of facts and since the points are inter-connected, I propose to take up these points together for discussion.
12. At the outset, I have to take note that in view of the medical evidence on record, there is little doubt that P.W.1 has sustained simple hurt and P.Ws. 2 and 4 sustained grievous hurt and were hospitalized. The question for consideration would be whether these injuries were caused by the accused.
The allegation of prosecution as noted supra is that TATA Sumo vehicle in which P.Ws.1,2 & 4 were travelling was chased by the accused persons in 3 different vehicles and have committed brutal attack on these 3 witnesses in a filmy style by using deadly weapons like metallic longs and clubs and out of them P.Ws. 2 and 4 have suffered grievous injuries. On the other hand, the accused have taken a defence of total denial by pointing out glaring discrepancies in the case. 17 S.C.No. 459/2008
13. I have scanned through the oral and documentary evidence placed on record. Let me briefly mention the ocular evidence placed by prosecution. PW.1 is the informant in the case, who has apparently supported the case and has given description about the assault incident. He has named the accused as the assailants and has stated about lodging information before the police as per Ex.P.1. He along with panch witness PW.3 would testify that the police have drawn mahazar at the scene of occurrence and have recovered M.Os. 1 to 4 from the spot and also seized blood stained clothes as per M.Os.5 to
9. PW.1 has also deposed about getting injured in the attack and taking first-aid in the hospital.
14. PW.2 is the elder brother of PW.1 and he also would support the version of the prosecution about the alleged attack committed by the accused. He has narrated about the assault committed by the accused persons over him, due to which he suffered grievous injuries. He states that though he was taken to Sanjay Gandhi hospital, he along with PW. 4 were shifted to Wochardt hospital, wherein he has taken treatment as an inpatient. He has identified M.Os. 10 to 12 as the weapons used against him for commission of assault.
18 S.C.No. 459/2008
15. PW.4 is the cousin of PWs.1 and 2. He has fully turned hostile to the case of prosecution. Though he deposes that all the three of them were coming in TATA Sumo vehicle, he would state that due to an incident of accident at Guru Garden signal light, their vehicle hit another vehicle and some unknown persons got down from said vehicle and holding deadly weapons committed assault and ran away. He has thereby turned hostile to the entire case and in the cross-examination nothing worthy has been elicited by the prosecution.
16. PWs.5 and 6 are the panch witnesses to Ex.P.4 seizure mahazar and they have turned hostile to the case. They have deposed that neither Maruti Omni nor MOs.10 to 12 were seized in their presence.
17. PW.7 is the ASI who has deposed about arresting A-6 to 8 and producing before the I.O with Ex.P.5. PW.8 is the SHO who deposes about receiving information as per Ex.P.1 from PW.1 and registering FIR as per Ex.P.6. He has states about visiting the scene of occurrence along with P.Ws.1 and 3 and other panch witnesses and conducting Ex.P.2 spot mahazar and seizing M.Os.1 to 9. P.W.9 is the I.O. who has conducted part 19 S.C.No. 459/2008 of investigation and he states about recording further statement of P.W.1.
18. P.Ws.10 and 11 are the Doctors who have deposed about issuing wound certificates as per Ex.Ps.7, 8 and 9 in respect of injured P.Ws.1, 2 and 4 respectively.
19. P.W.12 is the I.O who has deposed about conducting full investigation in the matter and effecting arrest of A-6 to 8. He states about arresting A-1 and conducting seizure mahazar Ex.P.4 under which M.Os.10 to 12 were seized in the presence of panch witnesses. He further states about receiving a report regarding caste of Accused Nos.1, 6 and 8 as per Ex.P.11 and in respect of PWs.1, 2 and 4 vide Ex.P.12. He states about receiving opinion from P.W.11-Doctor (Ex.P.13). The I.O further states that he has recorded statement of other witnesses and on completion of investigation, he has laid the charge sheet. Delay in submission of FIR:
20. (a) I will now take up for discussion the rival contentions, in the backdrop of the evidence placed on record. As regards lodging of information vide Ex.P.1, there are lot of 20 S.C.No. 459/2008 contradictions emerging in the evidence of P.Ws.1 and 2 and P.Ws.8 and 12. P.W.1 in his examination-in-chief would state that he was injured in the incident. According to him the alleged assault took place in front of Islamia Institute on Bannerghatta main road around 1.30 pm. He further states that after first aid he came to MICO layout P.S and lodged information as per Ex.P.1. P.W.8 who was SHO has deposed about receipt of said information at 3.45 pm and registering FIR Ex.P.6. But in the cross-examination of P.W.1 at para 20 page 12 it has been elicited by the defence that the Police Inspector of MICO layout Police Station came to Sanjay Gandhi hospital and recorded his statement as per Ex.P.1 in the hospital itself. This admission in cross-examination runs contrary to the case of the prosecution.
(b) Further it is also to be appreciated that though Ex.P.6 FIR was prepared allegedly at 3.45 pm on the date of incident it has reached the learned jurisdictional Magistrate late in the night by 8.45 pm. It can be appreciated that the distance from MICO layout Police Station to the Judicial Quarters at NGV, Koramangala is hardly 3-4 km. Yet there has been nearly 5 hours delay in despatching FIR and no evidence is forthcoming for such delay. Moreover, as admitted by P.W.8, the despatch 21 S.C.No. 459/2008 time in FIR is left blank. According to the prosecution, such a heinous offence has happened on a busy traffic road and yet there is an unexplained delay in submitting FIR to the Magistrate. The prosecution has utterly failed to offer any valid and cogent reasons for such delay. In view of my other discussions infra and the contradictory versions about lodging Ex.P.1, the inordinate and unexplained delay in despatching FIR goes to the root of the matter and it becomes fatal to the case. Such delay gives room for strong suspicion that a false story has been invented to frame the accused in the case. Ex.P.2 mahazar & seizure of M.Os 1 to 9:
21. P.W.1 states about Ex.P.2 mahazar and seizure of M.Os.1 to 9 from the scene of occurrence. P.W.3 is a panch witness who would support the case in this regard. P.W.8 also states about drawing of mahazar. The timing of drawing Ex.P.2 is shown as in between 4.30 and 6.00 pm but the timing has been altered in the original mahazar by using whitener. It is to be appreciated that the alleged incident has happened on day time and on a busy traffic road around 2 pm in front of Guru Garden. M.Os.1 and 2 are allegedly the glass pieces of TATA Sumo vehicle which was targeted by the accused. M.O.3 is the 22 S.C.No. 459/2008 blood stained tar mud and M.O.4 is sample mud. It has come out in evidence that Bannerghatta main road is a busy traffic road and there is no evidence to show that the traffic was halted till drawing of Ex.P.2 mahazar. As such, thousands of vehicles would have plied on the road and it is very difficult to appreciate the version of prosecution about M.Os.1 to 4. Moreover, the police have neither seized the TATA Sumo vehicle under Ex.P.2 mahazar nor produced it before the court during the trial. There is no evidence to connect M.Os.1 and 2 with the said vehicle. In the cross examination of P.W 1 at page 13 para 21 it is elicited that M.Os. 5 to 9 which are said to be blood stained clothes of the injured were received by the police on the following day of the incident. As such, the seizure of M.Os.5 to 9 on 18.2.2008 under Ex.P.2 is doubtful. Further, P.W.3 panch witness is maternal uncle of P.W.1. He states that on learning about the incident he came to Sanjay Gandhi hospital and from there he reached Wochardt hospital at 4 pm. In the cross-examination he states that as per the request of the police he agreed to become a panch witness and from Wochardt hospital they reached the scene of occurrence and Ex.P.2 mahazar was drawn. In view of the contradictory claim made by P.W.1 and 23 S.C.No. 459/2008 the fact that P.W.3 is a close relative of the injured, it becomes very difficult to rely upon his testimony regarding mahazar. Though P.W.1 has admitted in the cross-examination that M.Os.5 to 9 were received by the police on the following day of incident, P.W.3 makes a tall claim that the said articles were seized at the spot while drawing Ex.P.2 mahazar. In view of the aforesaid contradictions and inconsistency in the evidence, I am of the view that the drawing mahazar Ex.P. 2 and seizure M.O.1 to 9 is not proved by the prosecution.
Non-seizure Tata Sumo vehicle:
22. The police have neither seized the TATA Sumo vehicle which was allegedly attacked either at the time of drawing Ex.P.2 mahazar or made any efforts to produce it before the court during the trial. It is the said vehicle in which the injured were allegedly travelling and was chased by the accused. Further, there is also allegation about the accused causing mischief and damaging the vehicle, and thereby causing loss to the tune of Rs.10,000/- to the injured. No effort is made to prove that M.Os. 1 & 2 glass pieces belong to this vehicle. Moreover, no evidence is placed on record to prove the ownership of said vehicle. Though in the evidence P.W.1 claims 24 S.C.No. 459/2008 that vehicle belongs to his brother P.W.2, the RC book or particulars are not forthcoming. Considering all the above facts it has to be held that the non-seizure of said vehicle has affected the credibility of the case of prosecution. Discrepancies/contradictions in the evidence of injured:
23. Now coming to the alleged incident, we have several inconsistencies in the version of the prosecution. The prosecution contends that TATA Sumo vehicle was chased in a filmy style and the accused persons by using M.Os.10 to 12 have committed deadly assault on the injured witnesses. In this regard, Ex.P.1 gives a description that when the inmates of TATA Sumo vehicle were coming on Bannerghatta road the accused due to previous ill-will were following TATA Sumo vehicle in 2-3 Cars and when they came near Guru garden hotel the accused persons over them and wrongfully restrained the vehicle of the injured. When the said version is compared with the account given by P.Ws.1 and 2, there is lot of variance and improvements. P.W.1 has not deposed that the incident occurred in front of Guru garden but he states that it occurred 1.30 pm were coming near the compound of Islamiya institute. So also P.W.2 would depose that when they were coming near 25 S.C.No. 459/2008 Meenakshi temple and Islamiya Institute of Bannerghatta road, the accused wrongfully restrained him. P.W.2 states that the accused who got down from Maruti Omni and Santro car by using long, iron rods and chopper hit on the TATA Sumo vehicle and subsequently up to Hulimavu gate they came hitting the vehicle and near Mantri Apartments, they came in three cars and restrained TATA Sumo vehicle illegally. As such, it can be appreciated that P.W.1 has failed to depose about any such chasing incident by the accused. P.W.1 is alleged to have given further statement before the IO wherein he has stated about the chasing of the vehicle continuously from three different points. But the prosecution has not treated P.W.1 hostile to said extent. As pointed supra, the cousin of P.Ws.1 and 2 i.e., P.W 4 has turned fully hostile and not supported the case of prosecution.
24. P.W.2 has deposed that before attacking them near Mantri Apartments, the accused had chased them continuously vehicle from two locations. But when the evidence of P.Ws.1 and 2 is looked into, it apparently shows lot of inconsistencies and also improvements, which are not found either in Ex.P.1 or in their statements. P.W.1 was allegedly 26 S.C.No. 459/2008 driving TATA Sumo vehicle and it cannot be believed that he forgot to mention the details the alleged attack and chasing of their vehicle. Further, there is no independent witnesses to testify about such alleged chasing of the vehicle. One more aspect to be noted is the timing of alleged assault. While P.Ws.1 & 2 claim that around 1.30 or 2 pm such attack was carried out, in Ex.P.8 wound certificate relating to P.W.2, the timing of incident is mentioned as 12.30 pm. The reason for such glaring discrepancy is not explained. This has affected their credence. If the accused were chasing their vehicle from two different spots and also had attempted to hit their vehicle, it should have been mentioned clearly in the evidence of P.W.1. As such, the chasing of TATA Sumo vehicle which is a material fact, has been surprisingly omitted by P.W.1 and thereby he has given a scope to strongly suspect his version.
25. The contradictions emerging out of the evidence of PWs.1 and 2 vide Ex.D 6 and 7 are not clarified by I.O. PW. 2 under Ex.D.6 has stated that son of Chinnappa has not participated in the crime whereas, before the court he claims that he has not given any such statement. PW.1 has not at all stated about the chasing of the TATA Sumo vehicle from 2 27 S.C.No. 459/2008 different points by accused. At a later stage, he has tried to improve the case by claiming that he has given further statement in regard to same.
Ill-will or motive for the crime:
26. Coming to the motive or ill-will for the crime, Ex.P.1 mentions that due to previous ill-will the accused persons were following TATA Sumo vehicle from Meenakshi temple. It is stated in Ex.P.1 that one Ramu working with his brother was assaulted by A.1 Srinivasa and his people and in this regard a case was lodged against A-1 Srinivasa. P.Ws.1 and 2 claim that they were proceeding on that day to Sanjay Gandhi hospital to visit Ramu but have not given the details of any assault allegedly made on Ramu by accused No.1 Srinivasa or his people. Further, the prosecution has not placed any material in regard to case registered against accused No.1 in this regard in Bannerghatta Police Station as alleged in Ex. P.1. No evidence is placed on record to show that Ramu was admitted in hospital and he was an inpatient as on 18.2.2008. So also, the prosecution has not examined said Ramu to prove any such ill-will or motive to the case. In view of these lapses 28 S.C.No. 459/2008 on the part of the prosecution, a serious dent is created in regard to its version about previous ill-will or motive. Injuries and Medical evidence:
27. P.Ws.1 and 2 have given description about the attack made on them by the accused. P.W.1 states that near Islamiya Institute his vehicle was illegally restrained and accused No.1 by using a club assaulted on his right hand. P.W.2 states that A.1 by using club and iron rod assaulted on P.W.1. As such, there is variance in regard to these witnesses about the weapon used for committing assault on P.W.1. Further, P.W 2 states that he was pulled out of the vehicle by accused No.3 to 5 and accused No.1 and others by using long and choppers assaulted on his both hands, head, face and on both the knee and that he sustained grievous injuries. Further he has stated that accused No.1 by using club assaulted on his right hand. These two witnesses state that P.W.1 shifted them to Sanjay Gandhi hospital. P.W.1 states that he took treatment as an outpatient while P.Ws.2 and 4 state that they were shifted to Wochardt hospital and got admitted as inpatients.
29 S.C.No. 459/2008
28. (a) P.W 10 is the Doctor who testifies that he has examined P.W.1 and has issued wound certificate Ex.P 7. The injuries are noted therein as follows: 'A lacerated wound on right forearm measuring about 3x1x1. I am of the opinion that above said injuries are of simple in nature.'
29. The Doctor by having a look at M.O.10 club has opined that such a lacerated wound can occur by using said object. But in his cross-examination the Doctor admits that by using a club lacerated wound cannot be inflicted but only contusion. P.W.1 has not deposed about accused No.1 allegedly using long or chopper against him but he was hit by club. On observing M.O.10, I find that it is merely a plain wooden club and it is difficult to believe that any lacerated wound can be inflicted by using the same. As such, we have to seriously suspect about the cause of wound on P.W.1.
30. P.W.11 is Doctor Sri Hamsa who has issued Ex.P.8 & 9 wound certificates in respect of P.Ws.2 and 4 respectively. The said Doctor is the Medical Officer of Wochardt hospital, Bannerghatta road, Bengaluru. In regard to the injuries on P.W.2 it is mentioned in Ex.P.8 as follows:
30 S.C.No. 459/2008
"1. Open injury left hand with Bifurcation though the 3rd web space extending up to wrist joint with EDP and FDS Tendon injury;
2. Grade III B open fracture Patella Right knee; 3 Fracture Para symphysib right;
4. Fracture Angle of Mandible left;
5. Cut lacerated wound extension aspect of proximal 1/3 left;
6. Cut lacerated wound right forearm and wrist;
7. Cut lacerated wound left knee."
31. P.W.11 further states that he has examined M.Os.10 to 12 as sent by IO and has issued Ex.P.13 opinion stating that by using said objects the injuries noted in Ex. P.8 & 9 can be inflicted. The doctor has been subjected to gruelling cross- examination but I find that nothing important has been elicited by the defence. There are some minor discrepancies about P.Ws.2 and 4 having taken initial treatment elsewhere before admitting in Wochardt hospital. The treatment taken in previous hospital cannot be disputed. Upon considering the overall medical evidence placed on record, there is little doubt that P.Ws 2 and 4 have suffered grievous injuries as noted 31 S.C.No. 459/2008 Ex.P.8 & 9 and it could be inflicted by using weapons like M.Os.10 to 12.
Arrest of A-1 and Ex.P.4 mahazar:
32. Accused No.1 is said to have been arrested by the I.O. on 8.3.2008 along with Maruti Omni bearing registration No. KA 51 2791, in which M.Os.10 to 12 weapons were also found. The prosecution contends the said vehicle and weapons were seized by I.O by conducting a seizure mahazar Ex.P.4. P.Ws 5 and 6 are the panch witnesses to Ex.P.4 and they both have completely turned hostile to the case. They have deposed that they were summoned to the Police Station and their signatures were taken as Ex.P.4 (a) & (b) respectively, without letting known its contents. They have been treated as hostile at the instance of prosecution and nothing crucial has emerged in cross-examination. P.W.12-IO deposes that such mahazar was drawn by him at the spot. It has come out in his cross- examination that M.Os.10 to 12 objects are freely available in the market and no distinctive marks are made on the same at the time of making alleged seizure. In view of panch witnesses not supporting the case and in view of lot of discrepancies in the case projected by the prosecution as noted supra, it 32 S.C.No. 459/2008 becomes very difficult to rely upon the sole testimony of I.O regarding Ex.P.4 mahazar. For all the above reasons, I am of the view that the prosecution has utterly failed to prove the recovery of Maruti Omni and M.Os.10 to 12 under Ex.P.4 mahazar.
Background of P.W.2:
33. While assessing the intrinsic worth of testimony of injured P.Ws.1 and 2, it is to be appreciated that P.W.2 was a rowdy sheeter, whose name was found for a long time in rowdy sheet maintained by Bannerghatta Police Station. Though initially P.Ws.1 and 2 have tried to deny the said fact, yet in their cross-examination it has been elicited that P.W.2 is also called by different names like Nanjappa @ Nagaraju @ M. Nagaraj. P.W.2 has been confronted with the certified copy of Writ Petition No. 9800/10 (GM - Police) as Ex.D.3. Ex.D.4 is the rowdy sheet maintained by Bannerghatta Police Station where in at Sl.No.3 his name is found. In page No.5 of Ex.D.3 there is a mention of about 12 cases filed against P.W.2 for various criminal offences. Further, in view of Ex.D.1 and 2 and his admission, it is clear that he had petitioned against one Ms. Philomina in August 2009 and had urged the IGP to take 33 S.C.No. 459/2008 action against her and PSI - Vijayakumar of Bannerghatta Police Station, who had given supari to the said lady and her team to kill him. In the Writ Petition at Ex.D.3 (a) in para 5 at page 7, P.W 2 has stated that the assault incident on 18.2.2008 was caused by Ms.Philomina. When Ex.D.1 to 3 are scrutinized and compared with the version given by P.Ws.1 and 2, a strong suspicion about the assault would arise. The prosecution has not examined said Ms.Philomina in the case. More importantly, while petitioning Ex.D1 more than 1 ½ years after the alleged attack, P.W 2 has not named the accused herein. Instead, he has categorically contended that said lady and P.S.I. - Vijayakumar are responsible for attack on him on 18.2.2008. P.Ws.1 and 2 have admitted that there are several pending disputes between P.W.2 and Ms. Philomina. As noted supra, P.W.2 was a rowdy sheeter for quite some time and against him a dozen criminal cases of different sorts are pending. Considering the aforesaid evidence, it becomes very difficult to believe the interested version of P.Ws.1 and 2. As such their version is to be taken with a pinch of salt. 34 S.C.No. 459/2008 Non-examination of independent witnesses:
34. It is the case of prosecution that in a day time a deadly attack was carried on P.W.1 and his party. But no independent witnesses are examined in this regard. Except for the interested version of the brothers P.Ws.1 & 2, we have no account of the incident from any independent source. Hence, the non-placing of independent witnesses has caused irreparable damage to the case of prosecution.
Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act:
35. By placing Ex.P.12 on record prosecution has no doubt shown that the injured belong to Adi Karnataka caste which comes under the Scheduled Caste. Further Ex.P.13 is placed to prove that A-1, 6 to 8 are non-members of Scheduled Caste but no attempt is made to place in evidence the caste of other accused. It is alleged that at the time of attack the accused have knowingly and intentionally humiliated PWs.1, 2 and 4 by referring to their caste and thereby the penal provision under Section 3(1)(x) of the Act is attracted. As discussed by me supra, the very incident of attack as projected by the prosecution is highly doubtful and the case is not proved in respect of the said incident of assault. On this count 35 S.C.No. 459/2008 also, there is nothing in Ex.P.1 to show that the accused persons knew about the caste of the injured or that intentionally they were abused by referring to their caste. On the other hand, Ex.P.1 makes no mention of such allegation and the prosecution has contended that on the following day of the incident PW.1 gave further statement and later, the offence u/s Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act came to be added. There is no credible evidence either in regard to the main incident of assault or the said allegation of humiliation within public view by referring to their caste.
Conclusion:
36. On over all consideration of the materials placed on record, I am of the considered view that the prosecution has failed to prove beyond all reasonable of doubts that the accused persons by forming an unlawful assembly, armed with deadly weapons with a common object and pre-plan have attacked PWs.1, 2 and 4 and also caused damage to the vehicle of the injured and thereby wrongful loss to them etc.
37. It is also to be noted that the cousin of PWs.1 and 2 i.e., PW. 4 has completely turned hostile. Further there are no independent witnesses either to the alleged incident or towards 36 S.C.No. 459/2008 alleged recovery of M.Os.10 to 12. The case suffers severe infirmities and discrepancies. Hence, all the above reasons, I am of the view that the case projected by the prosecution is not proved in respect of any of the charges and as such, the A-1 to 6, 8 and 9 are entitled for acquittal. Accordingly the points are answered.
38. Point No.7:- In the result, I proceed to pass the following:-
ORDER Acting under Section 235(1) of Cr.P.C, the Accused Nos.1 to 6, 8 and 9 are acquitted of the offences punishable under Section 143, 147, 148, 341, 324, 427, 307, read with Section 149 of IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act, 1989.
The bail bonds of the Accused Nos.1 to 6, 8 and 9 stand cancelled.
Since the case against Accused No.7 (Chandru) is ordered to be split up, the M.Os.1 to 12 shall be preserved till disposal of said case.37 S.C.No. 459/2008
(Dictated to the Judgment Writer, revised by me and after corrections, pronounced in open Court on this the 23rd day of September, 2015.) (M. CHANDRASHEKAR REDDY) II Addl. City Civil and Sessions Judge and Special Judge, Bengaluru ANNEXURE WITNESSES EXAMINED FOR THE PROSECUTION:
Examined on:
P.W.1 : M. Jayaram 18-03-2010
P.W.2 : Nagaraj 18-03-2010
P.W.3 : Ramesh 18-03-2010
PW. 4 : Manjunath 04-08-2011
PW. 5 : M.N. Kiran Naik 03-09-2011
PW. 6 : Anthonyraj 03-09-2011
PW. 7 : Ravikumar 10-11-2011
PW. 8 : Nagalingaiah 27-12-2011
PW. 9 : Kashi 27-12-2011
PW. 10: Dr. Narasimhamurthy 27-12-2011
PW. 11: Dr. Srihamsa 27-12-2011
PW. 12: M.N.B.R. Prasad 01-03-2012
DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature
Ex.P.2 : Mahazar
Ex.P.2(a)&(b): Signatures
Ex.P.3 : Statement
38 S.C.No. 459/2008
Ex.P 3(a)to(c): Signatures
Ex.P 4 : Panchanama
Ex.P 4(a)to(c): Signatures
Ex.P 5 :
Ex.P 5(a) : Signature of PW. 7
Ex.P 6 : F.I.R.
Ex.P 6(a) : Signature
Ex.P 7 to 9 : Wound certificates
Ex.P 7(a) to 9(a): Signatures
Ex.P 10 : Statement
Ex.P 10(a) : Signature
Ex.P 11 : Caste particulars of Accused
Ex.P 11(a) : Signature
Ex.P 12 : Caste particulars of CWs.1 to 3.
Ex.P.13: Opinion of Doctor.
MATERIAL OBJECTS MARKED FOR THE PROSECUTION:
M.O.1 & 2: Broken glass pieces M.O.3: Tar mud.
M.O.4: Sample mud.
M.O.5 to 9: Blood stained clothes of CWs.1 to 3. M.O.10: Wooden Club M.O.11: Metallic long.
M.O.12: Metallic long WITNESSES EXAMINED FOR THE DEFENCE:
- Nil -
DOCUMENTS MARKED FOR THE DEFENCE:39 S.C.No. 459/2008
(In the course of cross examination of PW.2) Ex.D-1: Copy of petition given to IGP Ex.D-2: Endorsement issued by police to P.W 2 Ex.D-3: Copy of Writ Petition in 9800/10. Ex.D-4: Rowdy sheet maintained by Bannerughatta P.S. Ex.D-5: Portion of Statement of P.W 2 (In the course of cross examination of PW.9) Ex.D-6 & 7: Portion of statement of P.W 1 given before I.O. u/s 161 of Code of Criminal Procedure (In the course of cross examination of PW.12) Ex.D.8 - Remand Application.
(M.CHANDRASHEKAR REDDY)
II Addl City Civil and Sessions Judge
GS/- and Special Judge, Bengaluru.