Bangalore District Court
State By The Police SubInspector vs ) Rithesh @ Rithesh Babu on 5 May, 2022
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH58)
Present:
Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge,
Mayo Hall Unit, Bengaluru.
: S.C.No.610/2019 :
Dated this the 05th day of May 2022.
Complainant: State by the Police SubInspector,
Marathahalli, Bangalore.
(By Public Prosecutor)
V/s
Accused: 1) Rithesh @ Rithesh Babu,
S/o. Late Prathap Prabhu,
Aged about 31 years,
R/at Flat No.D123,
Itina Aba Apartment,
Munekolala Main Road,
Munekolala, Marathhalli Post,
Bangalore city.
2) Chandu Reddy @ Laxmikanth,
S/o. Srinivas Reddy,
Aged about 25 years,
R/at No.04, 2nd Cross,
Laxmi Layout, Munekolala,
Marathhalli Post,
Bangalore city.
2
S.C. No.610/2019
3) Madesh S/o. Kashappa,
Aged about 22 years,
R/at No.61, DVG Road,
Opposite to Upahara Darshini Hotel,
Basavanagudi, Bangalore city.
(Repted. By NVR., Adv.)
TABULATION OF THE EVENTS
1. Date of Commission of offence : 28.08.2017
2. Date of report of offence : 29.08.2017
3. Date of arrest of accused : 29.08.2017(A1 to 3)
4. Name of the complainant : Sri. Ajeej
5. Nature of offence complained : U/Sec.323, 324,
307, 427, 504, 506
r/w sec. 34 of IPC.
6. Date of commencement of
recording evidence : 02.02.2021
7. Date of closing of recording of
evidence : 11.04.2022
8. Date of judgment: : 05.05.2022
9. Opinion of the Judge : Accused 1 to 3
are Acquitted
Duration of the case : Year/s Moth/s Day/s
04 08 07
*********
JUDGMENT
The Marathahalli Police have filed the charge sheet against the accused for the offence punishable U/Sec. 323, 324, 307, 427, 504, 506 r/w sec. 34 of IPC. 3
S.C. No.610/2019
2. Brief facts of the case are that, on 28.08.2017 at about 1030 p.m. the complainant, Basheer and Santhoshkumar were working in a S.V. Bakery which was under the ownership of Santhoshkumar. The accused persons came to the bakery and demanded for half pack cigarette and Mosambi Juice. When CW1 demanded for money, the accused persons abused the CW1 in filthy language and made a call to some person. After some time the residents of Munekolal by name Ritesh Babu, Madesh, Chandan, Murugesh and 12 to 15 members came in Toyota Fortuner Car and other vehicles and made an assault on the complainant and others. The complainant and Santhosh escaped from the spot and rushed to the PG. By that time the accused persons chased them and broken the doors and entered the PG and dragged the complainant outside, then removed his clothes and assaulted on him with iron rods and stone. The accused Ritesh Reddy made an attempt to stab on the neck of complainant with knife, when he tried to rescue it hit on the lower lip and cheek. So, he sustained a bleeding injury. Further in the 4 S.C. No.610/2019 complainant he stated that Chandan, Murugesh, Mahadesh also made an assault him with iron rod and another person took the iron rod which was lying near PG and severely assaulted on the complainant. When the complainant fell down all of them left by shouting and by giving threat of murder. He also stated in the complaint that in the galata he lost Rs.60,000/ which was in his pocket. Further stated that all the incident recorded in CC TV camera. Further stated that they are under threat. Accordingly the complainant lodged the complaint on 29.08.2017 at 1715 hrs.
3. The Police have registered the case against the accused persons for the offence punishable u/S. 323, 324, 307, 427, 504, 506 r/w sec. 34 of IPC and proceeded with the investigation.
4. During the course of investigation the Police have visited the spot and drawn the Mahazar and seized the material objects under mahazar. Recorded the statement of witnesses, arrested the accused and then 5 S.C. No.610/2019 after the investigation charge sheet has been filed. In the charge sheet, CW1 to CW20 cited as a witnesses. CW1 is the complainant, CW2 to CW4 are the eye witnesses. CW5 and 6 are hearsay witnesses, CW7 and 8 are the spot mahazar witnesses, CW9 who transferred the recordings in footage and transferred to DVD. CW10 and CW11 are the seizer mahazar witnesses. CW12 to CW17 are the police officials who apprehended the accused. CW18 is the doctor, who treated the complainant. CW19 is a PSI, who registered the case and CW20 is the Police Inspector who conducted the investigation and filed the charge sheet against the accused.
5. On filing of the charge sheet the learned Magistrate has committed the case to the Prl. City Civil and Sessions Judge, Bangalore and in turn the Prl. City Civil and Sessions Judge, Bangalore made over this case to this court for trial. Accused are on bail.
6. Heard before charge. Since there are primafacie material to frame charge against accused, charges are 6 S.C. No.610/2019 framed, read over and explained to the accused No.1 to 3. Accused are pleaded not guilty and claims to be tried.
7. In order to establish the case of the prosecution, the prosecution examined PW1 to PW10 and got marked the documents Ex.P.1 to Ex.P.11. MO1 to 6 are marked.
8. In this case inspite of proclamation and warrant and on taking all types of coercive steps CW1 to 4, 7, 10, 11 and 19 not secured. Prosecution examined the PW1 to 10 and prosecution evidence closed.
9. All the incriminating evidence available against the accused are read over to the accused and statement u/s 313 Cr.P.C. are recorded. Accused No.1 to 3 denied the incriminating evidence and submits no evidence on their side.
10. Arguments Heard.
11. The points that arise for my consideration are:
1. Whether the prosecution proves beyond reasonable doubt that on 28082017 at about 1030 pm the accused No.1 to 3 with common intention went to the S.V. Bakery of CW3 situated at Balaji Layout, Munekolala 7 S.C. No.610/2019 and demanded for cigarette and mosambi juice and when the CW1 demanded for money these accused persons abused the CW1 to 3 in filthy language and thereby committed an offence U/Sec. 504 r/w. 34 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on 28082017 at about 1030 pm the accused No.1 to 3 with common intention assaulted the CW1 to 3 with hands, iron rods and stones and caused injuries and thereby committed an offence U/Sec. 323 and 324 r/w. 34 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on 28082017 at about 1030 pm the accused No.1 to 3 with common intention to commit the murder of CW1 assaulted with knife and thereby committed an offence U/Sec. 307 r/w. 34 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that on 28082017 at about 1030 pm the accused No.1 to 3 with common intention to commit the murder and made an assault the accused persons given life threat to CW1 to 3 and thereby committed an offence U/Sec. 506 r/w. 34 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that on 28082017 at about 1030 pm the accused No.1 to 3 with common intention to commit the murder and made an assault when they tried to rescue themselves they rushed to the PG and the accused persons broken the doors of PG and 8 S.C. No.610/2019 thereby committed an offence U/Sec. 427 r/w. 34 of IPC?
6. What order?
12. My findings on the above points are as under: Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : In the Negative Point No.5 : In the Negative Point No.6 : As per the final order for the following:
REASONS
13. Point No.1 to 5: According to the prosecution the accused persons oftenly used to visit the S.V. Bakery, Balaji Layout, Munekolala which was under the ownership of Santhoshkumar. They used to buy Tea, cigarette and juice, but not paying money. Accordingly, on 28082017 at 1030 pm the accused persons visited the bakery and demanded for cigarette and juice, when CW1 demanded money the accused persons abused the CW1 to 3 in filthy language and with common intention they assaulted on them with hands, iron rods and stone. The complainant 9 S.C. No.610/2019 and his inmates tried to escape and ran towards PG to hide in the bathroom. But, the accused persons chased them and broken the bathroom door of the PG with the help of knife and iron rods, then damaged the door. The accused persons with an intention to commit the murder, the accused No.1 assaulted on the cheek of CW1 with knife and accused No.3 assaulted on the body of CW2 and 3 with iron rods. When they fell down with an injury, they have given life threat to them and left the spot and thereby accused persons committed an offence punishable u/S. 323,324,307,427,504,506 r/w sec. 34 of IPC.
14. It is the burden on the prosecution to prove the guilt of the accused beyond all reasonable doubt. In order to prove the guilt of accused prosecution examined PW1 to PW10.
15. PW1 is the doctor, who treated the injured persons. In his evidence he deposed that on 29082017 he treated Mohammad Basheer and Azeez who sustained injury in an assault and deposed that Mohammad Basheer 10 S.C. No.610/2019 sustained a injury on his left eyebrow region. Azeez sustained lacerated wound on the left hand region and mandible region. He deposed that he had issued a wound certificate and it is marked as Ex P1 and 2. He deposed that the injury sustained by them are simple in nature. In the crossexamination he deposed that he has not mentioned the age and colour of the wound. But, denied that he issued a false wound certificate.
16. PW2 is the head constable deposed that on 29 082016 he himself and CW12 to 16 were deputed to trace out the accused. They tracedout the accused Mahadesh and Chandan at Yemalur signal. They apprehended them and produced before CW15 along with the report. He identified the accused before the court.
17. PW3 and PW4 in their evidence deposed that on 29082018 they came to know that there was a galata in the PG. On the next morning in between 8 to 9 am they went to PG and came to know that there was galata between unknown persons. These witnesses not deposed 11 S.C. No.610/2019 any thing against the accused persons. So, the prosecution sought permission to treat these witnesses as hostile witnesses and to cross examine them. In the cross examination prosecutor put a suggestion to the witnesses and they admitted on 28.09.2017 at about 1040 pm there was a galata between the boys residing in a PG with other 34 persons. Further, it is suggested that they came to know that accused Ritesh assaulted with a knife on Mohammad Ashish and caused injury, then the accused Chandan and Mahadesh assaulted to CW2 and 3 with iron rod and club, they admitted that they given statement before the police. But they deposed that they have not stated the names of the accused persons before the police. They denied that they given a statement before the police as per Ex. P3 and 4.
18. Though at the time of crossexamination of PP, these witnesses deposed that they have stated before the police. But, at the time of crossexamination done by the advocate for accused these witnesses admitted that they 12 S.C. No.610/2019 have not witnessed any incident and do not know who made galata and how many persons were present. The evidence of PW3 and PW4 is no way helpful to the prosecution and their evidence are not reliable and trustworthy.
19. PW5 police officer in his evidence deposed that on 29082017 he himself, HC 8126 and PC 7465 were deputed to trace out the accused persons by name Ritesh Babu, Chandan and Mahadesh who involved in a crime in crime No. 371/2017. Accordingly, they came to know that the accused Ritesh Babu residing in an apartment, they apprehended him and produced before the PSI at 600 pm along with report as per Ex.P5. This witness identified the accused No.1 before the court.
20. PW6 in his evidence deposed that in the year 2018 he was running the laptop repair shop at Marthahalli. Further he deposed that police have brought 1 DVR from PG and requested him to transfer the footage to the hard disk. Accordingly, he transferred the recording of 13 S.C. No.610/2019 CC TV footage to DVD which recorded in between 1000 p.m. to 130 a.m. DVR marked as MO1, CD marked as MO2. In the crossexamination he deposed that one Guruprasad and Gajanana came to his shop along with police. But, he deposed that he has not stated which software is used to transfer the recording from DVR to DVD. He deposed that he has not given any statement before the police. The evidence of this witness not much helpful to the prosecution.
21. PW7 the Police Inspector in his evidence deposed that on 29.08.2017 he visited the spot and drawn the spot mahazar in between 540 p.m. to 640 p.m. in the place as shown by the complainant in the presence of witnesses. He further deposed that at the time of mahazar he seized 1 steel knife stained with blood, 1 iron rod having wooden handle, 2 iron rods, 2 stones and the DVR in which footage is recorded. Then returned to the police station and subjected all the seized articles in PF No.64/2017. He recorded the statement of Panchas and deputed the staff to 14 S.C. No.610/2019 trace out the accused and the officials apprehended the accused persons and produced before him. In order to ascertain the running condition of DVR, he called the report from the owner of PG by name Dasharatha Reddy. On 30082017 he recorded the further statement of the complainant and statement of Mohammad Basheer, Santhosh, Dasharatha Reddy, Karthik and Venkatesha Reddy. He further deposed that he called panchas at the time of transferring the CC TV footage from DVR to DVD. He deposed that on completion of investigation he filed the charge sheet against the accused for the offence punishable U/Sec. 427, 143, 144, 147, 148, 149, 307, 323, 324 IPC. The spot mahazar is marked as Ex. P6.
22. He identified the Steel Knife, iron rods, rod with handle and stones which are marked as MO3 to 6. He also identified the DVR which marked as MO1. He deposed that PW5 and 6 were given statement before him as per Ex. P1 and 2. The signature of the witness are marked as Ex.P1(b) and 2(b). The report submitted by CW12 is marked Ex. P5 15 S.C. No.610/2019 and signature of the witness is marked as Ex. P5(a). The mahazar drawn at the time of transferring the CC TV footage to DVD is marked as Ex.P7 and signature of the witness is marked as Ex. P7(a). DVD is marked as MO2. He identified the accused before the court.
23. In the crossexamination he admitted that he has not taken the signature of the complainant on the mahazar and further deposed that he has not taken finger print of accused to get the opinion from Finger Print Expert Report to ascertain that which accused used which weapon. He deposed that he has not seized the blood stained clothes of the injured. He admitted that the articles like M.O.3 to 5 can found in the market and stones can found in the public place. He admitted that he has not put any mark on the seized article.
24. PW8 was a police officer deposed that on 2809 2017 he was an SHO of the police station. At about 515 p.m. Ashish visited the police station and filed a written complaint. On receiving the complaint he registered the 16 S.C. No.610/2019 FIR in Crime No. 317/2017 for the offence punishable U/Sec. 427, 143, 144, 147, 148, 149, 307, 323, 324 IPC. The complaint is marked as Ex.P8, the signature of the complainant is marked Ex.P8(a) and the signature of the witness marked as Ex.P8(b). FIR is marked as Ex.P9, signature of the witness marked as Ex. P9(a).
25. According to the prosecution PW9 and PW10 are the spot mahazar witnesses, they deposed that about 23 years back they visited the police station and attested their signature to Ex. P6. Signature of the witnesses are marked as Ex.P6(a) and (b). They deposed that police have not seized any article in their presence.
26. According to the prosecution the Mr.Santhoshkumar was the owner of the S.V.Bakery and there was a quarrel in the bakery. But, in the Spot mahazar Ex.P6, it reflects that galata taken place near S.V. Bakery. Further, according to the prosecution PW7 and PW8 are the panchas to the spot mahazar and in their presence material objects were seized. But, these two 17 S.C. No.610/2019 witnesses not deposed in favour to the prosecution and categorically deposed that they signed on Ex.P6 in the police station. Though these witnesses crossexamined by the prosecution nothing material evidence elicited from the mouth of the witness to prove the spot and seizure of material objects.
27. Further, according to the prosecution at the time of incident CW1 and 2 are working in S.V. Bakery and CW4 is residing in PG. CW1 to 4 are the material witnesses to prove the case of the prosecution. But, inspite of coercive steps taken by the court, these witnesses are not secured. CW1 and 2 are the injured. But, there is no material evidence placed by the prosecution to show that these accused persons assaulted on CW1 and 2 with an intention to commit the murder. Further, though the prosecution examined the doctor as PW1, the wound certificate reflects that CW1 and 2 sustained injuries which are simple in nature. Further, the evidence of the doctor not corroborated by examining the injuries. IO in 18 S.C. No.610/2019 his evidence deposed that he has not seized the blood stained clothes of the injured.
28. It is pertinent to note that in the complaint it is stated that the accused persons called some other persons to the spot and they came in a vehicle near the bakery. But, this aspect is not proved through witnesses. At the time of filing the charge sheet, accused No.4 to 9 were dropped. PW3 and 4 are also not deposed anything against the accused to prove the guilt and they are hearsay witnesses.
29. In this case the place of incident and the seizure of material objects not proved by the prosecution. Further it is not proved that these accused persons made an attack on the CW1 and 2 with an intention to commit the murder.
30. Further, there is a charge against the accused that they have damaged the doors of the bathroom of the PG. But, no evidence before the court to prove that the accused persons with an intention to cause loss damaged the bathroom door of the PG and thereby destructed the property 19 S.C. No.610/2019 and caused loss. There is no evidence to show that the accused persons have committed a mischief and their act affected the property.
31. In this case prosecution failed to prove that the accused persons with common intention caused hurt and grievous hurt on CW1 and 2 with material objects as stated by the prosecution. Further, there is no material evidence placed by the prosecution to show that the accused persons fully knowing that their act will cause the death of CW1 and 2, made an attack with deadly weapons. Whether the accused caused simple injury or grievous injury is not a material to decide that the accused committed an offence punishable u/s 307 IPC. But, it is necessary to prove that the accused persons with an intention to commit the murder made all attack on CW1 and CW2 with deadly weapons. But, in this case the intention of the accused persons is not established by the prosecution with cogent material evidence. So, the main ingredient of intention and knowledge of the accused is not 20 S.C. No.610/2019 proved. The evidence produced by the prosecution is not sufficient to hold that the accused persons committed an offence punishable u/s 307 IPC.
32. Further there is no evidence to prove that the accused persons given life threat to CW1. On going through the entire material evidence placed by the prosecution, I am of the opinion that prosecution failed to prove beyond all reasonable doubt that the accused persons intentionally insulted the CW1 to 3 and given provocation to break the public place and it leads to commit another offence.
33. Further, the prosecution failed to prove that the accused persons with an intention to commit murder of CW1 and CW2 armed with deadly weapons ans assaulted them and caused grievous hurt. So, I am of the opinion that prosecution failed to prove the charge leveled against accused No.1 to 3 beyond all reasonable doubt. Hence I answer point No.1 to 5 are in Negative. 21
S.C. No.610/2019
34. Point No.6: In view of the above findings, I proceed to pass the following : ORDER Acting U/Sec.235(1) of Cr.P.C. the accused No.1 to 3 are acquitted for the offence punishable u/S. 323, 324, 307, 427, 504, 506 r/w sec. 34 of IPC.
The accused are set at liberty.
MO2 to 6 are worthless. Hence, order to destroy after appeal period is over. The accused shall comply the provisions U/Sec. 437(A) of Cr.P.C. and shall execute a personal bond for Rs.50,000/ each with one surety for likesum for his appearance before higher Court as and when such Court issues notice in respect of any appeal or petition filed against this judgment.
(Dictated to the Typist and after carrying out corrections by me, print out taken by her and then pronounced by me in open Court on this the 5th day of May, 2022.) (Smt.K.G. Shanthi) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
22
S.C. No.610/2019 ANNEXURE List of witnesses examined for the Prosecution: PW.1 : Dr.Subhashree Nanda PW.2 : Thimmappa Babu PW.3 : Karthik PW.4 : Venkatesh Reddy PW.5 : Somesh Gejji PW.6 : Pradeep Kumar PW.7 : Guruprasad G. PW.8 : Shivaswamy PW.9 : Mohammed Gouse PW.10 : Syed Irfan List of documents marked for the Prosecution:
Ex.P1 : Wound Certificate Ex.P2 : Wound Certificate Ex.P1(a) : Signature Ex.P1(b) : Signature Ex.P2(a) : Signature Ex.P2(b) : Signature Ex.P3 : Portion Statement of PW3 Ex.P4 : Portion Statement of PW4 Ex.P5 : PW5's Report Ex.P5(a) : Signature Ex.P6 : Mahazar Ex.P6(a) : Signature Ex.P6(b) : Signature Ex.P7(b) : Signature Ex.P7 : Seizure Mahazar Ex.P7(a) : Signature Ex.P8 : Complaint
Ex.P8(a) : Complainant's signature Ex.P9 : FIR Ex.P9(a) : Signature Ex.P10 : PW9's written statement Ex.P.11 : PW10's written statement 23 S.C. No.610/2019 List of Mos. marked for prosecution : M.O.1 : DVR M.O.2 : CD M.O.3 : Steel knife M.O.4 : Iron Salake M.O.5 : 2 iron rods M.O.6 : 2 stones LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
24 S.C. No.610/2019 Judgment pronounced in open court (vide separate Judgment) ORDER LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.