Bangalore District Court
State By Viveknagar Police vs Dilip.M.S/O. Malakondaiah on 31 August, 2021
IN THE COURT OF THE XXIX ADDL.C.M.M
MAYOHALL UNIT, BENGALURU
Dated: The 31st Day of August 2021
PRESENT: Sri. G.R.KULKARNI,
B.A.(LAW)., LL.B.,
XXIX Addl. Chief Metropolitan Magistrate, Bengaluru.
C.C.NO. 53806/2017
COMPLAINANT :- State by Viveknagar Police
Station
(By Sr.APP)
ACCUSED 1. Dilip.M.S/o. Malakondaiah
Aged 27 Years
2. Malakondaiah.C S/o.
Chennaiah
Aged 49 years,
3. Arun.S S/o. Shanmugam
Aged 33 years,
All are R/at.No.42/1, 1st Cross,
2nd Stage, near Payryad,
Ejipura Main Road,
Viveknagar Post, Bengaluru.
(By Sri. N.Manohar., Advocate)
DATE OF COMMENCEMENT 29.06.2018
OF EVIDENCE
DATE OF CLOSING OF 16.02.2021
EVIDENCE
DATE OF JUDGMENT 31.08.2021
2 C.C.No.53806/2017
JUDGMENT
This is a final report filed by the PSI of Viveknagar P.S against the accused No.1 to 3 for the offences punishable U/s.323, 324, 326 and 506 r/w. Sec.34 of Indian Penal Code.
2. BRIEF FACTS:-
The case of prosecution is that on 13.04.2016 at about 5.30 P.M at house No.19, 2nd Cross, behind Payrand, Ejipura Main Road within the jurisdictional limits of Viveknagar police station, the accused No.1 to 3 in furtherance of common intention have assaulted CW.1 and CW.2 with hands causing injuries, accused No.1 assaulted CW.1 with cricket bat causing injury and assaulted CW.1 with cricket bat causing grievous injury and criminally intimidated him.
3. Based on the first information, the police have registered the case, investigation was conducted and after completion of the investigation final report filed against the accused No.1 to 3.
4. The accused No.1 to 3 have entered appearance in response to the summons and have been enlarged on bail. The prosecution papers have been supplied to the accused. After hearing, the charge against the accused No.1 to 3 was framed to which they pleaded not guilty and claimed to be tried.
3 C.C.No.53806/20175. The prosecution has examined PW.1 to PW.6 and got marked Ex.P1 to Ex.P10. The statement of the accused under Section 313 of Cr.P.C., was recorded wherein they deny the incriminating circumstances as false. The accused submit no defence.
6. Heard arguments on both sides.
7. The following points arise for my consideration:-
1. Whether the prosecution proves beyond reasonable doubt that on 13.04.2016 at about 5.30 P.M at house No.19, 2nd Cross, behind Payrand, Ejipura Main Road within the jurisdictional limits of Viveknagar police station, the accused No.1 to 3 in furtherance of common intention have assaulted CW.1 and CW.2 with hands causing injuries and thereby committed an offence punishable U/s.323 r/w.
Sec.34 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on the above mentioned date, time and place the accused No.1 to 3 in furtherance of common intention among them accused No.1 assaulted CW.1 with cricket bat causing injury and thereby committed an offence punishable U/s.324 r/w. Sec.34 IPC?
3. Whether the prosecution proves beyond reasonable doubt that on the above mentioned date, time and place the accused No.1 to 3 in furtherance of common intention among them accused No.1 assaulted CW.1 with cricket bat causing grievous injury and thereby committed an offence punishable U/s. 326 r/w. Sec.34 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that on the above mentioned date, time and place the accused No.1 to 3 in 4 C.C.No.53806/2017 furtherance of common intention among them accused No.1 criminally intimidated CW.1 and thereby committed an offence punishable U/s.506 r/w. Sec.34 of IPC?
5. What order?
8. My answer to the aforesaid points is as under:-
Point No.1 to 4 - In the Negative
Point No.5 - As per final order
for the following:-
REASONS
9. Point No.1 to 4: As the facts pertaining to these
points are related to each other, all these points are taken together for common discussion for brevity.
10. The prosecution is required to prove that on 13.04.2016 at about 5.30 P.M near house of CW.1 situated at house No.19, 2nd Cross, in front of main road of Ejipura when CW.1 and CW.2 were standing, accused No.1 to 3 picked up quarrel with them, assaulted them with hands, accused No.1 assaulted CW.1 with cricket bat to his head and caused grievious injuries and also criminally intimidated him.
11. PW.1 who is the complainant in this case has testified that on 10.04.2016 at about 5.40 P.M along with CW.2 were standing near his house, in the meanwhile accused No.1 to 3 came there and among them accused No.1 assaulted him with bat to his head and limbs. The accused No.2 and 3 assaulted him with hands and legs.
5 C.C.No.53806/2017Thereafter the accused took the CW.2 to the police station. He took the treatment at Bowring Hospital. Thereafter at NIMHANS Hospital and on 12.04.2016 he was admitted at St. John's Hospital. He has given the statement to the police at hospital which is at Ex.P1. PW.1 has identified bat as MO.1. PW.1 is partly treated hostile and cross-examined by the Ld. Sr.APP wherein he has admitted that the accused have assaulted and criminally intimidated him. Nothing significant is elicited during his cross-examination on behalf of the accused.
12. PW.2 is an acquaintance. He has stated that in the year 2016 at 6.00 P.M he along with CW.1 were standing together, the accused No.1 assaulted CW.1 with a cricket bat to his head and legs. PW.2 has identified MO.1. PW.2 is also partly treated hostile and cross- examined by the Ld.Sr.APP wherein it is admitted that the accused have criminally intimidated PW.1.
13. PW.3 is one of the attesting witness to spot panchanama who has turned hostile. PW.3 admits that he has signed at Ex.P2. He is unable to elicit the contents of Ex.P2. The cross-examination of PW.3 has not yielded any positive result in favour of prosecution.
14. PW.4 is the Investigation Officer who has testified that on 13.04.2016 he has received the intimation from Koramangala Police. He has registered the case and 6 C.C.No.53806/2017 drawn FIR. Intimation is at Ex.P3 and FIR is at Ex.P4. On 13.04.2016 he has recorded the statement of CW.3 and CW.9. On 16.04.2016 he has recorded the statement of CW.7 to CW.9. On 24.04.2016 he has deputed CW.12 and CW.13 to trace the accused. They have secured the accused and produced before him and CW.12 has given the report to this effect which is at Ex.P5. He has identified the accused before the Court. He has recovered M.O.1 in the presence of panchas by drawing panchanama as per Ex.P6.
15. PW.4 has further testified that on the same day he has recorded the statement of CW.13. After completing the arrest procedure he has released the accused on bail. On 30.04.2016 he has received the wound certificate which is at Ex.P7 from St. John's Hospital. On 24.04.2016 he has recorded the voluntary statement of accused No.1 to 3. The voluntary statement of the accused is marked as Ex.P8 to Ex.P10. He has recorded the statement of the CW.1 at St. John's Hospital which is at Ex.P1. Thereafter he has handed over the investigation to CW.15. Nothing significant is elicited during his cross-examination.
16. PW.5 is another Investigation Officer who has concluded the investigation and submitted the charge sheet against the accused.
8 7 C.C.No.53806/2017
17. PW.6 is one of the attesting witnesses to seizure panchanama at Ex.P6 who has turned hostile. Nothing significant is elicited during his cross-examination.
18. It is useful to refer to the relevant offences alleged against the accused which the prosecution is required to prove beyond reasonable doubt. The alleged offences are as follows:
19. " Section 319 of IPC. Hurt-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 320 of IPC. Grievous hurt- The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye. Thirdly.--Permanent privation of the hearing of either ear. Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth. Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Section 321 of IPC. Voluntarily causing hurt- Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 322 of IPC. Voluntarily causing grievous hurt- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if 8 C.C.No.53806/2017 the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt".
Explanation.- A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.
Section 503 of IPC. Criminal intimidation- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
20. Section 323, 324, 326 and Section 506 of IPC are the penal provisions for the respective offences as mentioned above. The evidence on record is required to be examined and assessed considering the relevant provisions of law as stated above. The prosecution is required to establish the essential ingredients of the alleged offences with cogent evidence in order to bring home the guilt of accused.It is argued by the Ld.counsel for the accused that the prosecution has failed to prove its case beyond reasonable doubt the therefore the accused may be acquitted. The Ld.Sr.APP has argued 9 C.C.No.53806/2017 that the evidence on record is sufficient to convict the accused and therefore the accused may be convicted.
21. I have carefully considered the entire evidence on record. PW.1 and PW.2 have categorically stated the manner in which the incident has occurred and role of the accused in the alleged incident. A very significant aspect which the prosecution is required to establish is the identity of the accused in this case. PW.1 and PW.2 who are the injured witnesses in this case have not stated anything in respect of identity of the accused. It is incumbent upon the prosecution to establish that it is accused before the Court who have assaulted the Complainant. The prosecution has not made any efforts in establishing this fact. Therefore the identity of accused is not proved.
22. Moreover the attesting witnesses to the spot panchanama at Ex.P2 and the seizure panchanama at Ex.P6 who are PW.3 and PW.6 have turned hostile. Under such circumstances the spot panchanama and the seizure panchanama stands not proved.
23. CW.3 who is the alleged attesting witness to the spot mahazar, CW.5 who is the alleged attesting witnesses to the seizure mahazar, CW.7 to CW.10 who are the hear-say witnesses, CW.11 who is the medical witness, CW.12 and 13 who are official witnesses have not been secured by the prosecution. Therefore said witnesses were dropped after exhausting all effective measures.
10 C.C.No.53806/201724. Considering the entire evidence on record, I am of the view that although there is oral evidence to the effect that PW.1 has sustained injuries , the prosecution has to establish that the alleged injuries sustained by PW.1 is due to the assault by the accused. There is no medical evidence tendered by the Medical Officer who has examined PW.1 and has issued the wound certificated which is at Ex.P7. Non examination of the Medical Officer to testify the injuries sustained by PW.1 does prove fatal to the prosecution. Mere oral evidence of the prosecution witnesses in the absence of the evidence of the Medical Officer would not be sufficient in order to substantiate the injuries sustained by PW.1. Hence it is imperative to hold that the prosecution has failed to prove the nexus between the alleged injuries sustained by PW.1 due to the assault by the accused.
25. Moreover the identity of the accused is not proved. The place of incident where the alleged offences are said to have been committed by the accused and the seizure of M.O.1 from the place of occurrence stands not proved. Not securing the material witnesses proves fatal to the prosecution case. Considering these factors I hold that the evidence on record is not sufficient and convincing in attributing the guilt of accused to the alleged offences. Therefore I hold that the prosecution has failed to establish the essential ingredients of the alleged offences with cogent evidence beyond 11 C.C.No.53806/2017 reasonable doubt. Hence the accused deserve to be given the benefit of doubt. Therefore I answer point No.1 to 4 in the NEGATIVE.
26. Point No.5: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/s.248(1) Cr.P.C. accused No.1 to 3 are hereby ACQUITTED for the offences punishable U/s. 323, 324, 326 and 506 r/w. Sec.34 of Indian Penal Code.
M.O.1 shall be destroyed as worthless after appeal period is over.
The bail bond of the accused No.1 to 3 and that of their surety stands cancelled.
(Dictated by me, typed by the steno, same was corrected by me and then pronounced in open Court on this the 31st day of August 2021) (G.R.Kulkarni) XXIX ACMM, BENGALURU 12 C.C.No.53806/2017 ANNEXURES LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Johnson Regan PW.2 Yogesh PW.3 Roopeshkumar PW.4 M.D.Laxmaiah PW.5 H.S.Krishna PW.6 Vimalraj LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Statement Ex.P.1(a) Signature of PW.1 Ex.P.1(b) Signature of PW.4 Ex.P.2 Spot Mahazar Ex.P.2(a) Signature of PW.3 Ex.P.2(b) Signature of PW.4 Ex.P.3 Intimation Ex.P.3(a) Signature of PW.4 Ex.P.4 FIR Ex.P.4(a) Signature of PW.4 Ex.P.5 Report of CW.12 Ex.P.5(a) Signature of CW.4 Ex.P.6 Seizure Mahazar Ex.P.6(a) Signature of CW.4 Ex.P.7 Wound Certificate Ex.P.7(a) Signature of CW.4 Ex.P.8 to Ex.P10 Voluntary statements of accused No.1 to 3 Ex.P.8(a) Signature of accused No.1 Ex.P.8(b) Signature of PW.4 Ex.P.9 Voluntary statement of accused No.2 Ex.P.9(a) Signature of accused No.2 Ex.P.9(b) Signature of PW.4 Ex.P.10 Voluntary statement of accused No.3 Ex.P.10(a) Signature of accused No.3 Ex.P.10(b) Signature of PW.4 LIST OF MATERIAL OBJECTS GOT MARKED :-
M.O.1 - Cricket Bat (G.R.Kulkarni) XXIX ACMM, BENGALURU 13 C.C.No.53806/2017 31.08.2021 State by APP Accused For Judgment (Judgment passed separately in the Open Court) ORDER Acting U/s.248(1) Cr.P.C. accused No.1 to 3 are hereby ACQUITTED for the offences punishable U/s.
323, 324, 326 and 506 r/w. Sec.34 of Indian Penal Code.
M.O.1 shall be destroyed as worthless after appeal period is over.
The bail bond of the accused No.1 to 3 and that of their surety stands cancelled.
XXIX ACMM