Bangalore District Court
The State Of Karnataka vs Unknown on 20 February, 2015
IN THE COURT OF THE CITY FAST TRACK (SESSIONS)
JUDGE : BANGALORE CITY ( F.T.C.No.VI )
Dated this the 20th day of February 2015
PRESENT : Sri H.Channegowda, B.Sc., LL.B.,
Presiding Officer, F.T.C.No.VI,
Bangalore.
S.C. No.971/2011
COMPLAINANT : The State of Karnataka,
By Parappana agrahara Police Station,
Bangalore.
Vs.
ACCUSED :
1) Chandra @ Peenya Chandra s/o
Krishna @ Krishna kutti, 20 years,
r/o No. 252, 3rd cross, Ist main,
Chokka Sandra, Peenya
Dasarahalli, Bengaluru -02
2) Chandra @ Kelamangala
Chandra s/o Venkateshappa,
aged 22 years,
Chikkanagamangala village,
Huskur post,Sarjapura hobli,
Anekal taluk, Bengaluru District
3) Shankar @ Chandru ( split up )
4) Basava @ Basavaraju s/o Krishna
@ Krishna kutti, 29 years, No.
777, 3rd cross, 1st main, Maruthi
layout, Chokka Sandra, Peenya
Dasarahalli, Bengaluru 02
5) Kumar @ Sambar s/o
Narayanappa, 23 years, No. 59,
S.C. 971/2011 2
26th cross, 6th main road,
K.P.Agrahara, Magadi road,
Bengaluru -23
6) Somashekar @ Kulla @ Soma s/o
Papanna, 22 years, r/o Ballur
village,Atthibele hobli, Anekal
taluk.
7) Anjaneya reddy @ Anji s/o Subba
Reddy, 20 years, r/o Reddi
varupalli village, Koorige palli
post,Srinivasa pura taluk, Kolar
District.
( By Sri. SKS, Advocate for A1 & 5,
Sri.BSM Advocate for A2, Sri.G.G.,
Advocate for A4, Sri.KR Advocate.,
Advocate for A6, Sri.RVS, Advocate
for A7)
Date of offence 12.12.2010
Date of report of offence 12.12.2010
Name of the complainant Sri.N.K.Vishwanath
Date of commencement of 2.01.2012
recording of evidence
Date of closing of evidence 17.1.2015
Offences complained of Ss 143,147, 341,323,307, 326
r/w 149 34 I.P.C.
Opinion of the Judge Accused No. 1, 2 4 to 7 are
found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri. SKS, Advocate for A1 & 5, Sri.BSM
Advocate for A2, Sri.G.G., Advocate for A4,
Sri.KR Advocate., Advocate for A6,
Sri.RVS, Advocate for A7
JUDGMENT
S.C. 971/2011 3
The Sub- Inspector of police of Parappana agrahara
police station, Bangalore has filed the charge sheet against the accused 1,2,4 to 7 ( Accused no.3 was dead and hence case as against him stands abated) for the offence punishable under Section 143,147,341 323, 307, 326 r/w 149 I.P.C.
2. The brief facts of the case of the prosecution are as under:
On 12.12.2010 at about 9.30p.m, in front of Akshya mobile shop, situated at Govinda shetty palya, Hosur main road, Bengaluru having previous enimity with C.w.1 sri.
N.K.Vishwanath, all the accused persons infurtherance of their common object of unlawful assembly came there in a santro car bearing No.KA 09 Z 1800 and in a motor cycle, in order to do away the life of C.w.1. At that time after seeing the accused no.3 C.w.1 Vishwanath tried to escape from the place by going in the cross road. At that time the accused no. 3 and 4 came and wrongfully restrained him and assaulted him by hands. When the C.w.1 Vishwanath tried to escape from the place , at that time the accused no.5 to 7 followed and S.C. 971/2011 4 caught hold him. The accused no.1 assaulted C.w.1 by means of long on the thigh of left leg and the accused no.2 assaulted C.w.1 by means of long on his left shoulder and caused bleeding injuries to C.w.1 and all the accused persons attempted to kill C.w.1 by doing such act.
After completion of investigation C.w.22 had submitted charge sheet against the accused persons for the offences punishable under Sections 143,147, 341,323,307, 326 r/w 149 of I.P.C.
3. After submitting the charge sheet by the I.O, the committal Magistrate committed the case to the court of Sessions against accused no.1,2,4 to 7 as the alleged offences are exclusively triable by the court of Sessions. In view of the order passed by the Hon'ble Prl.City Civil & Sessions Judge, Bangalore this case was made over to this court for trial. After hearing regarding framing of charge, my learned predecessor has framed charge against the accused no. 1,2 , 4 to 7 for the offences u/s 143, 147,341,323, 326,307 r/w 149 of I.P.C. read over and S.C. 971/2011 5 explained to them. Wherein, they pleaded not guilty and claimed to be tried.
4. After hearing the learned Public Prosecutor the trial was fixed. Amongst cited 22 witnesses, the prosecution has examined 10 witnesses as PWs.1 to 10 and got marked 16 documents as per Exs.P.1 to P 16 and marked M.O 1 and 2 and closed its side evidence.
5. Thereafter, the statement of the accused No. 1, 2,4 to 7 has been recorded as required under Section 313 of Cr.P.C. Wherein, they denied the same and did not chose to lead any evidence on their behalf. Then the case posted for arguments.
6. Heard the arguments.
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves to the hilt that on 12.12.2010 at about 9.30p.m infront of Thejas Akshaya mobile shop situated at Govinda shetty palya, Hosur main road, Bengaluru the accused no.1,2,4 to 7 along with accused no.3 having previous enimity with C.w.1 came there with common object of unlawful assembly and they committed rioting and thereby committed an offence S.C. 971/2011 6 punishable under Section 143, 147 r/w 149 of I.P.C., as alleged?
2. Whether the prosecution proves that on the above said date, time and place the accused No.1,2,4 to 7 along with accused no.3 with the common object of unlawful assembly came there along with deadly weapons like rod, and that the accused no.3 and 4 wrongfully restrained C.w.1 and thereby committed an offence punishable under Section 341 r/w 149 of I.P.C., as alleged?
3. Whether the prosecution proves to that on the above said date, time and place the accused No.,1,2,4 to 7 along with accused no.3 with the common object of unlawful assembly came there along with deadly weapons like iron rod, and that the accused no.3 and 4 wrongfully restrained C.w.1 and assaulted by hands and caused bodily pain to him and thereby committed an offence punishable under Section 323 r/w 149 of I.P.C., as alleged?
4. Whether the prosecution proves to that on the above said date, time and place the accused No.,1,2,4 to 7 along with accused no.3 with the common object of unlawful assembly came there along with deadly weapons like iron rod, and that the accused no.5 to 7 caught hold C.w.1 and the accused no.1 assaulted C.w.1 by means of long on his thigh S.C. 971/2011 7 of left leg and accused no.2 also assaulted C.w.1 by means of long on his left shoulder and caused grievous injuries to C.w.1 and thereby committed an offence punishable under Section 326 r/w 149 of I.P.C., as alleged?
5. Whether the prosecution proves to that on the above said date, time and place the accused No.,1,2,4 to 7 along with accused no.3 with the common object of unlawful assembly came there along with deadly weapons like iron rod, and that the accused no.5 to 7 caught hold C.w.1 and the accused no.1 assaulted C.w.1 by means of long on his thigh of left leg and accused no.2 also assaulted C.w.1 by means of long on his left shoulder and caused grievous injuries to C.w.1 with such knowledge that under such circumstances, if by those acts, the accused persons caused the death of C.w.1 and they would have been guilty of murder and thereby committed an offence punishable under Section 307 r/w 149 of I.P.C., as alleged?
6. What Order?
8. My finding 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
S.C. 971/2011 8
Point No.6: As per final order, for the
following:
REASONS
9. Point No.1 to 5- In brief, the case of the prosecution is that: On 12.12.2010 at about 9.30p.m, in front of Akshya mobile shop, situated at Govinda shetty palya, Hosur main road, Bengaluru having previous enimity with C.w.1 sri. N.K.Vishwanath, all the accused persons infurtherance of their common object of unlawful assembly came there in a santro car bearing No.KA 09 Z 1800 and in a motor cycle, in order to do away the life of C.w.1. At that time after seeing the accused no.3 C.w.1 Vishwanath tried to escape from the place by going in the cross road. At that time the accused no. 3 and 4 came and wrongfully restrained him and assaulted him by hands. When the C.w.1 Vishwanath tried to escape from the place , at that time the accused no.5 to 7 followed and caught hold him. The accused no.1 assaulted C.w.1 by means of long on the thigh of left leg and the accused no.2 assaulted C.w.1 by means of long on his left shoulder and caused bleeding injuries to C.w.1 and all the accused persons attempted to kill C.w.1 by doing such act. S.C. 971/2011 9
10. The prosecution in order to substantiate the above allegations made against the accused No.1,2,4 to 7 has relied upon the testimony of PWs.1 to 10.
11. P.w.1 Sri. N.K.Vishwanath is none other than the complainant and the injured person in the incident. P.w.2 Sri.Shivakumar, P.w.3 sri. Parveez, P.w.4 Sri.Anil Kumar are said to be the independent eye witnesses to the said incident. P.w.5 Sri. Srishyla P.C. 4719 has deposed with respect to caught hold of Accused no.6 by them. P.w.6 Sri.Thimmaraju , ASI has deposed with respect to receipt of Ex.P 1, complaint and registration of case and mahazar prepared by them as per Ex.P 4 in the place of incident. P.w.7 Sri.Sampath is said to be one of the panch witness to Ex.P 11 seizure mahazar. P.w.8 Sri.Rudra Aradhya, HC 3487 of Electronic city police station has deposed with respect to caught hold of accused no. 1, 3 to 7 and produced them before the police station. P.w.9 Sri. Dr. Shivaprakash has deposed with respect to treatment given by him to the injured Vishwanath and injuries caused to the injured as shown by him in Ex.P 12 wound S.C. 971/2011 10 certificate. P.w.10 sri.Ranganath, PSI is none other than the Investigating Officer.
12. Even though P.w.1 sri.Vishwanath is none other than the complainant and injured person in the said incident, but in the examination in chief evidence he has stated that there was no galata took place between him and accused no.3 earlier in a bar and he do not know the accused persons. Further he has deposed that as he sustained injuries in an accident, he taken treatment in the hospital. He has not given any statement to the police.
As this witness turned hostile, the learned Public Prosecutor cross examined him after treating him as hostile. Even though the learned Public Prosecutor has cross examined this witness but he has not supported the case of the prosecution and turned hostile. Thereby the above evidence of P.w.1 is not helpful to the case of the prosecution.
S.C. 971/2011 11
13. P.w.2 Sri.Shivakumar, P.w.3 Sri.Parveez and P.w.4 Sri.Anil kumar are said to be the independent eye witnesses to the said incident. But these three material witnesses in chief evidence have stated by and large to the effect that, they do not know the accused persons, they have not at all seen the assault committed by the accused to C.w.1. They have not given any statement to the police.
As these three material witnesses have turned hostile, the learned Public Prosecutor cross examined them after treating them as hostile. Even though the learned Public Prosecutor has cross examined these three witnesses, but they have not supported the case of the prosecution and turned hostile. Thereby the above evidence of P.w.2 to 4 is not helpful to the case of the prosecution.
14. According to the prosecution, on 11.3.2011 in between 4.45p.m to 5.30p.m, the concerned police have drawn Ex.P 11 seizure mahazar near a bush i.e. in a road leading to Huskur village and at the instance of accused no.2 the concerned police have recovered M.O1 and 2 iron longs and to the said S.C. 971/2011 12 mahazar P.w.7 Sampath and C.w.7 Sharavana kumar were the panch witnesses.
But one of the panch witness namely, P.w.7 sampath has deposed in examination in chief evidence that since one year back the police took him to Chikkanagamangala village and that 3-4 persons have produced chopper and the same was recovered under Ex.P 11 mahazar. Further he has deposed that the accused persons have not at all produced the longs, the accused persons are not known to him and he do not know the contents of the mahazar.
As this witness turned hostile, the learned Public Prosecutor cross examined him after treating him as hostile. Even though the learned Public Prosecutor has cross examined this witness but he has not supported the case of the prosecution and turned hostile. Thereby the above evidence of P.w.7 is not helpful to the case of the prosecution.
15. P.w.9 Dr. Shivaprakash has deposed in his evidence with respect to treatment given by him to the injured Vishwanath on S.C. 971/2011 13 13.12.2010 at 12.30p.m at Krishna nursing home and the injuries caused to said Vishwanath as shown in Ex.P 12 copy of wound certificate which are grievous in nature. Even though the learned counsel for the accused persons have cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
16. According to the prosecution, on 14.12.2010 the concerned police have drawn Ex.P 4 spot mahazar in the place of incident before the panch witnesses namely, C.w.5 and 6 and the place of incident was shown by P.w.2 Shiva kumar.
At the time of evidence even though this court has issued summons to C.w.5 and 6 and given sufficient opportunity to the concerned police, but they failed to secure and produce C.w.5 and 6 before the court. In view of the same the prosecution was unable to examine C.w.5 and 6 on its behalf. Even P.w.2 Shivakumar also not stated in his evidence with respect to the mahazar prepared by the police as per Ex.P 4 in the place of incident. Except the evidence of S.C. 971/2011 14 P.w.6 Sri. Thimmaraju, ASI there is no other corroborative evidence is found on record to corroborate the evidence of P.w.6. Thereby the prosecution has failed to prove the contents of Ex.P 4 spot mahazar.
17. According to the prosecution, apart from P.w.7 Sampath, C.w.7 sharavanakumar is one of the panch witness to Ex.P 11 seizure mahazar. But at the time of evidence the concerned police have failed to produce C.w.7 before the court even inspite of issuance of process to the said witness on several times by this court. As Ihave already stated P.w.7 Sri.Sampath has turned hostile and not supported the case of the prosecution in order to prove Ex.P 11. Thereby the prosecution has failed to prove the contents of Ex.P 11 seizure mahazar and also the seizure of M.O1 and 2 under the said mahazar.
18. According to the prosecution, on 14.12.2010 in the premises of Electronic city police station the concerned police have seized the above said santro car bearing no. KA 09 z S.C. 971/2011 15 1800 under Ex.P 16 seizure mahazar and to the said mahazar C.w.9 Vazeer and C.w.10 Shanmugam were the panch witnesses. At the time of evidence even though this court has issued summons to C.w.9 and 10 and given sufficient opportunity to the concerned police, but they failed to secure and produce C.w.9 and 10 before the court. In view of the same the prosecution was unable to examine C.w.9 and 10 on its behalf. Thereby the prosecution has failed to prove the contents of Ex.P 16 seizure mahazar.
19. P.w.5 Sri.Srishyla P.C. 4719 has deposed that on 14.12.2010 he was working as a driver in the jeep of C.w.21 and that at about 8.30p.m, near AECS lay out one of the black santro car was going in a very high speed and there after he chased the said vehicle and stopped the car bearing no. KA09 Z 1800 and they have caught hold accused no.6 Somashekara and on enquiry he disclosed the names of absconded accused persons. thereafter they took him to the police station along with the said vehicle. S.C. 971/2011 16 Even though the learned counsel for the accused persons have cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
20. P.w.6 Thimmaraju, ASI has deposed in his evidence that on 14.12.2010 when he was working as SHO, Sri.Shivanna, ASI submitted the statement of injured Vishwanath and on the basis of the same he registered the case in Cr.No. 372/2010 and thereafter he visited the spot on the same day and prepared the spot mahazar in the presence of panch witnesses and handed over the file to C.w.22 for further investigation.
Even though the learned counsel for the accused persons have cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
21. P.w.8 Sri. Rudra Aradhya HC 3487 has deposed in his evidence that on 28.12.2010 he and C.w.12 to 15, 17 and 18 have gone along with C.w.20 in order to secure the accused persons of this case and on that day they went to Kolar bus S.C. 971/2011 17 stand at about 2.30p.m and they caught hold 4 accused persons ( except A2) and produced them to the police station at about 5.30p.m.
Even though the learned counsel for the accused persons have cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
22. P.w.10 Sri.Ranganath, PSI is none other than the Investigating Officer. He deposed in his evidence that on 15.12.2010 he recorded the statement of P.w.1 to 4 and they have given statement before him as Ex.P 5 to 9. Thereafter he recorded the voluntary statement of Accused no.1 to 3 and in their voluntary statements they told that they will show two iron longs which were used for commission of offence if they were taken to the place. Thereafter he secured the panchas and his staff members and they took the arrested accused persons and prepared Ex.P 11 seizure mahazar and recovered two iron longs which were shown to them by the accused no.1 to 3. Further he has deposed that thereafter he S.C. 971/2011 18 summoned the complainant to the police station and recorded his further statements as per Ex.P 2 and Ex.P 3. Thereafter they took the complainant to the Electronic city police station and shown the seized car to him and he identified the same. Further he has deposed that after securing the wound certificate of the injured P.w.1, as the investigation is over, he submitted charge sheet against the accused persons before the court. At the time of evidence this witness has identified M.O1 and 2 articles before the court.
Even though the learned counsel for the accused persons have cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
23. Even though P.w. 5,6,8 to 10 have deposed in their evidence as per the case of the prosecution, but there is no corroborative evidence is found on record in order to corroborate the evidence of P.w.5,6,8 to 10 to prove the case of the prosecution beyond all reasonable doubt. Therefore, the evidence of above witnesses i.e. P.w.5,6,8 to 10 is S.C. 971/2011 19 insufficient to base conviction. Even though P.w1 is said to be the injured person in the alleged incident but he has not supported the case of the prosecution and turned hostile. Even though P.w.2 to 4 are said to be the independent eye witnesses to the said incident, but they have not supported the case of the prosecution and turned hostile. Thereby it go to the root of the case. The prosecution has also failed to prove the contents of Ex.P 4 spot mahazar, Ex.P 11 seizure mahazar and also another seizure mahazar i.e. Ex.P 16. Thereby it affects the case of the prosecution.
In the circumstances, it is stated that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, in view of all these reasons, I answer point No.1 to 5 in the negative.
24. Point No.6:- In view of my reasons as stated in point No.1 to 5, I proceed to pass the following:
ORDER Acting under Section 235(1) Cr.P.C., the accused No. 1,2,4 to 7 are acquitted of the offences punishable under Section 143, 147,341,323, 326,307 r/w 149 of I.P.C.S.C. 971/2011 20
Accused No.2 and 4 are in J.C. Hence, intimate the jail authority to release A2 and 4 forth with if they are not required in any other case.
M.O1 and 2 two iron longs shall be confiscated to the state after the appeal period is over.
(Dictated to Judgment Writer directly on computer, corrected and then pronounced by me in open court on this the 20th day of February 2015) (H.Channegowda), Presiding Officer, Fast Track Court-VI, Bangalore.
: ANNEXURE:
List of witnesses examined for the prosecution:
P.W.1 N.K.Vishwanath P.W.2 Shivakumar P.w3 Perveez Khan P.w4 Anil Kumar P.w5 Srishaila P.w.6 Thimmaraju P.w.7 K.K.Sampath P.w.8 Rudra aradhya P.w.9 Dr.Shiva prakash P.w.10 E.R.Ranganath
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW.1
S.C. 971/2011 21
Ex.P. 1 (b) Signature of P.w.6
Ex.P.2 Statement of P.w.1
Ex.P. 3 Statement of P.w.1
Ex.P. 4 mahazar
Ex.P. 4(a) Signature of P.w.6
Ex.P. 4 (b) Signature of P .w.6
Ex.P. 5 Statement of P.w.2
Ex.P. 6 Statement of P.w.2
Ex.P. 7 Statement of P.w.3
Ex.P. 8 -9 Statement of P.w.4
Ex.P. 10 F.I.R.
Ex.P. 10 (a) Signature of P .w.6
Ex.P. 11 Mahazar
Ex.P. 11(a) Signature of P .w.7
Ex.P. 12 Wound certificate
Ex.P. 12(a) Signature of P.w.9
Ex.P. 13 to 15 Statement of accused
Ex.P. 16 mahazar
List of documents exhibited on behalf of defence: Nil List of M.O. marked for the prosecution :
M.O1 & 2 two longs Presiding Officer, FTC-VI, Bangalore.S.C. 971/2011 22
( Judgment pronounced in open court vide separate Judgment) ORDER Acting under Section 235(1) Cr.P.C., the accused No. 1,to 4, 6 and 7 are hereby acquitted of the offences punishable under Section 399 and 402 I.P.C.
M.O1 to 4 shall be retained till the disposal of split- up case filed as against accused no. 5.
Presiding Officer, Fast Track Court-VI, Bangalore.S.C. 971/2011 23
ORDER ON BAIL APPLICATION FILED BY ACCUSED NO.4 U/S 439 OF CR.P.C. Accused No. 4 has filed the bail petition under Section 439 of Cr.P.C., praying for to enlarge him on bail for the reasons as stated in the bail petition.
In the bail petition Accused No. 4 has stated that earlier the accused no.4 was released on bail. But on the last date of hearing he was unable to present before the court due to bad health as he was suffering from viral fever. Due to his non appearance this Hon'ble court issued NBW against him. Further it is stated that he undertake to appear before the court regularly in the future date of hearings .S.C. 971/2011 24
2. The bail petition is opposed by the prosecution. In the objection the prosecution has reiterated the main averments of the complaint and further it is contended that this accused is irregular before the court at the time of trial and due to his non appearance witnesses were bind over for want of this accused. If the accused no.4 is granted he will remain absent and the witnesses could not be secured and therefore, the case will be on file for want of accused.
Mainly among these grounds it is prayed to dismiss the bail petition.
3. Heard the arguments.
4. It is seen from the records that after completion of investigation the concerned police have filed charge sheet against the accused persons for the offences punishable under Sections 341,307 r/w 34 of I.P.C.
5. After framing charge against the accused persons and when the case set down for trial, at that time the present accused no.4 remained absent. In view of the S.C. 971/2011 25 same this court has cancelled the bail of A4 and issued NBW against him. Thereafter the concerned police arrested the accused no.4 and produced him before the court on 28.7.2014. Then this court has remanded him to J.C.
6. As the concerned police have already submitted charge sheet against the accused persons, now the present accused no.4 is no more required for any custodial interrogation. Whether the accused no.4 has committed the alleged offence or not the same has to be thrashed out at the time of trial.
On considering the above facts and circumstances of the case and on considering the personal liberty of an individual in the society as per Article 21 of the Indian Constitution, I feel that it is just and reasonable to allow the bail petition of A4. Hence, in view of all these reasons, I proceed to pass the following:-
ORDER S.C. 971/2011 26 The bail petition filed by the Accused no.4 under Section 439 of Cr.P.C. is hereby allowed.
The Accused no. 4 is ordered to be enlarged on bail on executing personal bond for Rs.50,000/- with one surety for the likesum subject to the following:
CONDITIONS
1) The Accused no. 4 shall not tamper or terrorize the prosecution witnesses in any manner;
2) He shall appear before the court regularly without fail.
If any of the above conditions are violated, it is open to the prosecution to move an application for cancellation of bail.
(H.Channegowda), Presiding Officer, Fast Track Court-VI, Bangalore.