Bangalore District Court
Jaishree vs S Anand Kumar on 27 March, 2024
KABC030438812017 Digitally signed
by MOHAMMED
MOHAMMED YUNUS A
YUNUS A ATHANI
ATHANI Date:
2024.04.10
10:55:40 +0530
Presented on : 29-06-2017
Registered on : 29-06-2017
Decided on : 27-03-2024
Duration : 6 years, 8 months, 28 days
IN THE COURT OF XLV ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE COURT, BENGALURU
AT: BENGALURU
Present:- Sri. Mohammed Yunus Athani,
B.A.,L.L.B.
XLV Addl. Chief Metropolitan
Magistrate, Bengaluru.
Dated this the 27th day of March, 2024
C.C.No.17221/2017
Complainant:
The State,
By Police Sub-Inspector,
Jayanagar Police Station,
Bengaluru.
(By Sr. Assistant Public Prosecutor)
-V/S-
C.C.No.17221/2017
2
Accused:
1. S. Anand Kumar S/o late C. Swaminathan,
Age: 45 years,
R/o: H.No.24, 1st Main Road,
Vijayarangam Layout, Behind Canara Bank,
6th Block, Jayanagar, Bengaluru.
2. A. Dinesh @ Dinesh S/o S. Anand Kumar,
Age: 19 years,
R/o: H.No.24, 1st Main Road,
Vijayarangam Layout, Behind Canara Bank,
6th Block, Jayanagar, Bengaluru.
3. Smt. S. Vennilla W/o Saravan,
Age: 32 years,
R/o: H.No.68/1, 10th Main Road,
Sarakki village, 1st Stage, J. P. Nagar,
Bengaluru.
4. Smt. V. Laxmi W/o Dayanandsagar,
Age: 46 years,
R/o: H.No.29, 2nd Main Road,
Tata Steel Farm, K. R. Road,
Bengaluru.
5. Smt. V. Lata W/o Govindaswamy S.
Age: 41 years,
R/o: H.No.09, Pavatiyamma Compound,
Infront of Vasuda Bhavan,
K. S. Layout, Bengaluru.
6. Smt. B. Savitri W/o B. Srinivasan,
Age: 39 years,
R/o: H.No.21B, 3rd Main Road,
10th Cross, 1st Stage, J. P. Naagar,
Bengaluru.
7. Hemanth Kumar @ Hemanth S/o Dayanand Sagar S.,
Age: 22 years,
R/o: H.No.12, 2nd Main Road,
C.C.No.17221/2017
3
Tata Steel Farm, Near Garadi Apartment,
Basavagudi, Bengaluru.
(By Sri S. M. Rajashekharai, Advocate)
(Case against accused No.6 stands abated)
Date of incident 18/09/2016
Date of report 19/09/2016
Date of arrest of accused --
Date of release of accused on 31/07/2017
bail
Period of accused in J.C. --
Name of the complainant Smt. Jaishree W/o Late
Govindaswamy.
Date of commencement of 28/02/2019
evidence
Date of completion of 22/08/2023
evidence
Offences charged U/Sec.143, 147, 148, 427,
448, 323, 354(B), 355, 504,
506 R/w 149 I.P.C.
Opinion of the Judge Accused No.1 to 5 & 7 not
found guilty.
JUDGMENT
The Police Sub-Inspector, Jayanagar Police Station, has filed the final report against the accused No.1 to 7, alleging that they have committed an offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C.
C.C.No.17221/2017 4
2. The brief facts of the prosecution case are as under:
It is case of the prosecution that, on 18/09/2016 at 9:30 p.m., inside the compound wall of the house of C.W.5, situated at 1st main road, Vijayarangam layout, South-end circle, Jayanagar, Bengaluru, the accused No.1 to 7 having old enmity with C.W.5 and his family members, under the pretext of Ganesh festival procession, entered the compound wall of the house of C.W.5, knocked down the flower pots kept on the said compound wall and caused damage to C.W.5. When C.W.3 went to question the accused persons, the accused No.1 dragged her by holding her tuft, pushed her on ground, assaulted her with hands and outraged her modesty. When C.W.1 & 2 intervened to rescue their mother, the accused No.2 to 7 assaulted them with hands, dragged them by holding their clothes and outraged their modesty. Thereafter, the accused No.3 assaulted C.W.3 with slippers and the accused No.4 assaulted her with plastic bucket. When C.W.2 was recording video of above incident, the accused persons snatched her mobile phone, threw it away and assaulted her with hands. Further it is alleged that, in the said quarrel the accused No.1 to 7 have abused them with filthy language and C.C.No.17221/2017 5 have posed life-threat to them. Thereby, the accused No.1 to 7 have committed an offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C.
3. On the basis of first information statement lodged by the complainant, a case is registered against the accused No.1 to 6, for the offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C. Accordingly, the investigation officer has conducted the investigation in the case and filed the final report against the accused No.1 to 7 for the above alleged offence.
4. On receipt of prosecution papers, the cognizance of above offence is taken against the accused No.1 to 7 and summons was issued to them. Accordingly, the accused No.1 to 7 have appeared in the case through their counsel and obtained bail. The prosecution papers were supplied to the accused persons in compliance of Sec.207 of Cr.P.C. Thereafter, charge for the offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C., is framed, read over and explained to the accused persons in the language known to them. The accused No.1 to 7 have denied C.C.No.17221/2017 6 the charge, pleaded not guilty and claimed to be tried. At the outset it is pertinent to note that, during the course of trial the accused No.6 has expired. Hence, the case against accused No.6 stands abated.
5. In order to substantiate its case and to bring home the guilt of the accused No.1 to 5 & 7, the prosecution has examined total 6 witnesses as P.W.1 to 6 and got marked nine documents as Ex.P.1 to 9. On the other hand, the accused persons have got marked two documents on their behalf as Ex.D.1 & 2 by way of confrontation to prosecution witnesses. After closure of the prosecution evidence, the statement of accused No.1 to 5 & 7 as contemplated U/Sec.313 of Cr.P.C., is recorded and read over to them. The accused No.1 to 5 & 7 have denied all the incriminating circumstances appearing in the prosecution evidence and stated no evidence in their defence.
6. I have heard the arguments of both the sides and perused the entire material available on record.
7. The following points arise for my consideration:
C.C.No.17221/2017 7 POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, on 18/09/2016 at 9:30 p.m., inside the compound wall of the house of C.W.5, situated at 1st main road, Vijayarangam layout, South-end circle, Jayanagar, Bengaluru, within the jurisdiction of Jayanagar Police Station, the accused No.1 to 7, in furtherance of common object, formed themselves into an unlawful assembly with an intention to commit an offence and thereby committed an offence punishable U/Sec.143 R/w 149 of I.P.C. ?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common object, formed themselves into an unlawful assembly and committed rioting and thereby committed an offence punishable U/Sec.147 R/w 149 of I.P.C. ?
3. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common object, formed themselves into an unlawful C.C.No.17221/2017 8 assembly and committed rioting by holding deadly weapons in their hands and thereby committed an offence punishable U/Sec.148 R/w 149 of I.P.C. ?
4. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common object, trespassed in the compound wall of the house of C.W.5 and knocked down the flower pots kept on the said wall and thereby committed an offence punishable U/Sec.448 R/w 149 of I.P.C. ?
5. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common object, trespassed in the compound wall of the house of C.W.5, knocked down the flower pots kept on the said wall and caused damage to C.W.5 and thereby committed an offence punishable U/Sec.427 R/w 149 of I.P.C. ?
6. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused C.C.No.17221/2017 9 No.1 to 7, in furtherance of common object, have abused C.W.1 to 3 in filthy language and provoked them, knowing that such provocation would cause them to break the public peace and thereby committed an offence punishable U/Sec.504 R/w 149 of I.P.C. ?
7. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common intention, have assaulted C.W.1 to 3 with hands and caused simple injury to them and thereby committed an offence punishable U/Sec.323 R/w 149 of I.P.C. ?
8. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 3, in furtherance of common intention, have outraged the modesty of C.W.1 to 3 by dragging them by holding their cloths in the public and thereby committed an offence punishable U/Sec.354(B) R/w 149 of I.P.C. ?
9. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to C.C.No.17221/2017 10 7, in furtherance of common object, trespassed in the compound wall of the house of C.W.5 and accused No.3 assaulted C.W.3 with slippers and dishonored her and thereby committed an offence punishable U/Sec.355 R/w 149 of I.P.C. ?
10. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place of offence, the accused No.1 to 7, in furtherance of common object, have posed life-threat to C.W.1 to 3 and thereby committed an offence punishable U/Sec.506 R/w 149 of I.P.C. ?
11. What order ?
8. My findings on the above points are as under:
POINT No.1: Negative.
POINT No.2: Negative.
POINT No.3: Negative.
POINT No.4: Negative.
POINT No.5: Negative.
POINT No.6: Negative.
POINT No.7: Negative.
POINT No.8: Negative.
POINT No.9: Negative.
POINT No.10: Negative.
C.C.No.17221/2017 11 POINT No.11: As per the final order, for the following:
REASONS
9. POINT No.1 to 10: As all these points for consideration are inter-connected with each other, in order to avoid repetition of facts and circumstances of the case and for better appreciation of evidence on record, I take all these points together for common discussion.
10. In order to prove its case and to bring home the guilt of the accused persons, the prosecution has examined total 6 witnesses as P.W.1 to 6 and got marked nine documents as Ex.P.1 to 9.
11. The P.W.1, who is the victim/first informant in the case, has deposed in her evidence that, on 18/09/2016 at 9:30 p.m., when herself, her sister C.W.2 and her mother C.W.3 were in the house, the Ganesh festival procession was going on outside their house. At that time the accused persons knocked down the flower pots kept on the compound wall of their house. When herself, C.W.2 & C.W.3 went outside the house to question the accused persons, the accused No.1 all C.C.No.17221/2017 12 of sudden hold the tuft of C.W.3, dragged her and assaulted her with hands on her face and eye and pushed her on the ground. Thereafter, the accused No.3 assaulted C.W.3 with slippers and plastic bucket on her forehead and caused hurt. When C.W.2 was recording video of said incident, the accused persons snatched the mobile from her hand and assaulted her with hands. Further she has deposed that, in the said incident the accused persons have abused her in filthy language and posed life-threat to them. The accused persons have picked up quarrel with them for the reason of civil suit pending in between their father and accused No.1. Further, she has deposed that, she had lodged a complaint against the accused persons with respect to above incident, which is marked as Ex.P.1. On next day the Police visited the place of offence and conducted spot mahazer, which is marked as Ex.P.2. during the course of drawing mahazer, the Police have seized the flower pots and obtained photographs. Further she has deposed that, her mother has taken treatment at Public Health Center, Jayanagar. On the other hand, the learned counsel for accused by way of cross-examination has denied all the above stated facts & circumstances as false and C.C.No.17221/2017 13 concocted. Further, it is pertinent to note that, P.W.1 has clearly admitted in her cross-examination that, there is a civil dispute in between her father and accused persons. Further she has admitted that, his father has lodged complaint against accused persons and her brother has lodged another complaint against accused No.1 & 7 at Kumaraswamy Layout Police Station.
12. Likewise, P.W.2, who is another victim in the case and P.W.3 & P.W.4, who are hearsay witnesses in the case, have also deposed in consonance with the evidence of P.W.1 and thereby supported the case of prosecution. On the other hand, the learned counsel for accused by way of cross-examination has denied the entire facts & circumstances stated in the examination-in-chief of P.W.2 to 4 as false and concocted. It is pertinent to note that, P.W.2 to 4 have also clearly admitted in their cross-examination that, there is a civil dispute in between P.W.4 and accused persons. Further they have admitted that, P.W.4 has lodged complaint against accused persons and P.W.3 has lodged another complaint against accused No.1 & 7 at Kumaraswamy Layout Police Station.
C.C.No.17221/2017 14
13. The P.W.5, who is the medical officer who has examined and provided treatment to C.W.3 in the case, has deposed in his evidence that, on 18/09/2016 at 11.30 p.m., the C.W.3 came to his hospital for treatment with a history of assault. On examination he found contusion injury measuring 1 x 1 cm over her right cheek, contusion injury over the side of her forehead and redness over her right eye. The said injuries were simple in nature and there are chances of causing such type of injuries if a person is assaulted with slipper. Further he has deposed that, he has issued wound certificate with respect to same, which is marked as Ex.P.3. On the other hand, the learned counsel for accused by way of cross- examination has denied the above stated facts as false. Further, it is pertinent to note that, the P.W.5 has clearly admitted the suggestion made to him that, there are every chances of causing such type of injuries to a person if he fell down on the ground.
14. The P.W.6, who is the investigation officer in the case, has categorically deposed in his evidence that, on 19/09/2016 he received the written complaint lodged by C.W.1, registered the case under Crime No.256/2016, prepared first information C.C.No.17221/2017 15 report and submitted to the Court. On 20/09/2016 he has visited the place of offence and conducted spot mahazer in presence of C.W.6 & 7, from 11 a.m. to 11.45 a.m., as per Ex.P.2. On 11/10/2016 he has recorded the statements of C.W.2 to 4 and received the photographs of alleged incident produced by C.W.4. On 22/11/2016, the accused persons appeared before him along with anticipatory bail order. Accordingly, he arrested them and released on bail. On 26/05/2016 he has recorded the statement of C.W.5 and on 27/03/2017 he received the wound certificate of C.W.3, which is marked as Ex.P.3. Finally, on completion of entire investigation in the case, he has filed the final report against the accused persons to the Court. On the other hand, the learned counsel for accused by way of cross-examination has denied all the above stated facts as false and concocted. It is pertinent to note that, the P.W.6 in his cross-examination has clearly admitted that, at the time of drawing spot mahazer he did not find any flower pots were broken. Further he has clearly admitted that, he has not enquired whether on the alleged date of offence there was any Ganesh procession or not. Further he has admitted that, he has not enquired any C.C.No.17221/2017 16 witnesses residing around the place of offence. Further he has clearly admitted that, there is a civil dispute pending in between the accused persons and C.W.1 to 5.
15. On meticulously going through the entire evidence of prosecution witnesses, it clearly reveals that, the witnesses who have deposed in favour of prosecution side i.e. P.W.1 to 4 are all related to each other and they are interested witnesses in the case. Except the evidence of P.W.1 to 4, there is absolutely no other incriminating evidence of any independent witnesses to show that, on the alleged date, time and place of offence the alleged incident has taken place and the accused No.1 to 7 have committed the alleged offences. Further, the only independent witnesses cited in the final report i.e. P.W.6 & 7, have not been examined by the prosecution. Despite repeated issuance of summons and warrant against the said witnesses, the prosecution has failed to secure and examine the said witnesses. On account of non-examination of panch witnesses to Ex.P.2 spot mahazer, the contents of said document has remained uncorroborated. In such circumstances, there is no other option before this Court C.C.No.17221/2017 17 except to hold that, the prosecution has failed to prove the very place of offence in the case.
16. Though P.W.1 to 4 have deposed in favour of the prosecution, there are lot of material contradiction, omissions and improvements in their evidence, which creates doubt not only on the veracity of their evidence, but on the entire case of the prosecution. The P.W.2 has clearly admitted in her cross- examination that, on the alleged date & time of offence in view of Ganesh procession many people had gathered near their house and somebody had knocked down the flower pots kept on the compound wall of their house. Further, the investigation officer has clearly deposed in his cross- examination that, at the time of drawing spot mahazer he did not find any flower pots were broken. This clearly goes to show that, the allegations made against the accused persons that, the accused persons have knocked down the flower pots kept on the compound wall of the house of P.W.4 and caused damage to P.W.4, is absolutely false and concocted story. If really as alleged by the prosecution the accused persons have knocked down and broken the flower pots kept on the compound wall of house of P.W.4 and caused damage to him, C.C.No.17221/2017 18 the same being pivotal evidence against the accused persons in the case would have been definitely seized by the investigation officer while conducting spot mahazer.
17. Further, the admissions given by the investigation officer/P.W.6 during his cross-examination that, he has not enquired whether on the alleged date of offence there was any Ganesh procession or not and he has not enquired any witnesses residing around the place of offence in order to ascertain truthfulness of the allegations made against the accused, clearly goes to show that the investigation officer without conducting proper investigation in the case, only on the basis of self-serving statements of interested witnesses/C.W.1 to 5 has foisted charge-sheet against the accused persons. It seems very strange to note that, the investigation officer, for the reasons best known to him, has neither seized the plastic bucket alleged to have been used by accused No.3 to assault C.W.3, nor he has seized the flower pots alleged to have been knocked down and broken by the accused persons. Further it seems very strange to note that, admittedly though the alleged place of incident being a place surrounded by many houses, the investigation officer has not C.C.No.17221/2017 19 attempted to record the statements of any independent witnesses residing over there, in order to ascertain the truthfulness of the allegations made against the accused persons. Further, there is no evidence on record to show that, when, where and who has captured the Ex.P.5 to 9 photographs of alleged incident. The investigation officer has neither produced the negative or compact disc of said photographs, nor he has filed the certificate as contemplated under Sec.66(B) of Indian Evidence Act, for admissibility of said evidence.
18. Further, the medical officer who is said to have attended the injured C.W.3 in the case, has clearly admitted in his cross-examination that, there are every chances of causing such type of injuries to a person as shown in the Ex.P.3 wound certificate, on his falling down on the ground due to slip of leg. Admittedly, there is a long standing property dispute in between the families of P.W.1 to 4 and the accused persons. In such circumstances and in absence of cogent, reliable and corroborative evidence of any independent witness, this Court is of the opinion that, it is not safe to rely solely on the evidence of uncorroborated testimony of C.C.No.17221/2017 20 interested witnesses i.e. P.W.1 to 4 and hold the accused persons guilty of alleged offences, as the chances of P.W.1 lodging false complaint against the accused persons and P.W.1 to 4 deposing false in order to see that, the accused persons either give up their claim over the property in dispute or compromise the matter with them, cannot be easily over- ruled.
19. There is no cogent, reliable and corroborative evidence on record to show that, on 18/09/2016 at 9:30 p.m., the accused No.1 to 7 have trespassed the compound wall of the house of C.W.5, knocked down the flower pots kept on the said compound wall and caused damage to C.W.5. Likewise, there is no cogent, reliable and corroborative evidence on record to show that, in the alleged incident the accused No.1 to 7 have abused C.W.1 to 3 in filthy language, assaulted them with hands and caused hurt to them, outraged their modesty and posed life-threat to them. Further, there is no cogent, reliable and corroborative evidence on record to show that, in the alleged incident the accused No.3 has assaulted C.W.3 with slippers and dishonored her. In such circumstances, there is no other option before this Court C.C.No.17221/2017 21 except to hold that, the prosecution has failed to establish the essential ingredients of offences punishable under Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C.
20. The Hon'ble Supreme Court in the case of, Krishnegowda and others V/s State of Karnataka, reported in (2017) 13 SCC 98, at Para No.27, 32, 42 & 44 has clearly held that, "Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the Court, but if these contradictions create such serious doubt in the mind of the Court about the truthfulness of the witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence.
The minor variations and contradictions in the evidence of eye-witnesses will not tilt the benefit of doubt in favour of the accused, but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case, then those contradictions go to the root of the matter and in such cases accused gets the benefit of doubt.
C.C.No.17221/2017 22 Once there is a clear contradiction between the medical and the ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused.
The Court should always make an endeavour to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence."
21. Further, the Hon'ble Supreme Court, in Pulicherla Nagaraju alias Nagaraja Reddy V/s State of Andhra Pradesh, reported in AIR 2006 SC 3010, has clearly held that, "It is well settled that evidence of a witness cannot be discarded merely on the ground that he is partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be C.C.No.17221/2017 23 acted upon. If it is found to be improbable and suspicious, it ought to be rejected.
22. Therefore, in the light of ratio laid down in above cited decision and for the reasons stated above, this Court is of the considered opinion that, the prosecution has utterly failed to prove the charges leveled against the accused persons, beyond all reasonable doubt. As such, the accused No.1 to 5 & 7 are entitled for acquittal. Accordingly, I answer Point No.1 to 10 in the Negative.
23. Point No.11: In view of above conclusion, I proceed to pass the following order:
ORDER Acting U/Sec.248(1) Cr.P.C., the accused No.1 to 5 & 7 are acquitted for the offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C.
The bail bond and surety bond executed by the accused No.1 to 5 & 7 stands canceled.
C.C.No.17221/2017 24 (Dictated to the Stenographer, directly on the computer, transcript revised, corrected and then pronounced by me in the open Court on this the 27 th day of March, 2024) (Mohammed Yunus Athani) XLV A.C.M.M., Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution P.W.1: Jayashree W/o late Govind Swamy P.W.2: Kumud W/o Ganesh P.W.3: Naveen Kumar S/o Maharaj P.W.4: Maharaj S/o Swaminathan P.W.5: Dr. Ratna V. W/o Cheluva Narayana P.W.6: Ishwari W/o Suresh List of documents exhibited on behalf of prosecution Ex.P.1: First Information Statement Ex.P.2: Spot Mahazar.
Ex.P.3.: Medical Certificate. Ex.P.4.: First Information Report. Ex.P.5 to 9: Photographs.
List of material objects marked on behalf of prosecution
- NIL -
List of witnesses examined on behalf of accused
- NIL -
C.C.No.17221/2017 25 List of documents marked on behalf of accused Ex.D.1: Photograph Ex.D.2: Certified copy of interim application and affidavit.
List of material objects marked on behalf of prosecution
- NIL -
XLV A.C.M.M., Bengaluru.
C.C.No.17221/2017 26 (Order pronounced in open Court vide separate judgment) ORDER Acting U/Sec.248(1) Cr.P.C., the accused No.1 to 5 & 7 are acquitted for the offence punishable U/Sec.143, 147, 148, 427, 448, 323, 354(B), 355, 504, 506 R/w 149 I.P.C.
The bail bond and surety bond executed by the accused No.1 to 5 & 7 stands canceled.
XLV A.C.M.M., Bengaluru.