Bangalore District Court
(Represented By The Learned Senior App) vs For The Offences Punishable Under on 20 November, 2021
1 CC 11537 OF 2013
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 20th DAY OF NOVEMBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 11537 OF 2013
BETWEEN
1. STATE represented by
Bellanduru Police. ....COMPLAINANT
(Represented by the learned Senior APP)
AND
1. Arjun @ Mani S/o Late Chinnathambi,
Aged about 41 years,
R/at Narayana Reddy Building,
Doddakanalli, Karmelram Post,
Bengluru.
(Case against A1 is abated as he has been reported dead)
2. Dinesh S/o Papanna,
Aged about 21 years,
R/at Adosiddapura Village,
Sarjapura Road, Karmelram Post,
Bengaluru.
3. Manjunath S/o Govindappa,
Aged about 22 years,
R/at No.237, 6th Cross,
Yellukunte, Bommanahalli,
Bengaluru.
2 CC 11537 OF 2013
4. Manjuanth @ Deal Manja S/o Channappa,
Aged about 21 years,
R/at Kankaraju Building,
Satish Layout,
Chodadevanahalli, Anekal Taluk,
Bengaluru.
....ACCUSED
(Represented by Sri.A.G.Baseer Ahamed Khan.,Advocate)
BELLANDURU POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 448, 427, 323, 324, 354 R/W SECTION 34
OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 448, 427, 323, 324,
354 R/W Section
34 of IPC
Charge sheet filed on : 01032013
Trial commenced on : 12052015
Trial completed on : 17112021
Judgment date : 20112021
Total duration : DaysMonths Years
19 08 08
JUDGMENT
1. Case of the prosecution is as under; It is alleged that on 18/07/2011 at about 7.30 in the night, keeping in mind their previous enmity these 3 CC 11537 OF 2013 accused Nos.1 to 5 did enter the hotel premises of PW1 by way of trespass with an intention to assault PW2. The hotel is located at Doddakanalli at property No.130/5. The PW1 tried to resist them. But these accused Nos.2 and 3 held her hands and dragged her and she fell down and suffered injuries. These accused persons assaulted PW2 using their bare hands. Further the accused No.1 took a knife and assaulted PW2 on his hands, shoulders etc. He suffered blood injuries. Accused No.2 took an iron rod and assaulted him. However PW1 further tried to pacify them. Accused No.1 in his barehands assaulted on the abdomen of PW1. Other accused held the dress of PW1 and dragged her and they did put their hands on the breast portion of PW1 and did tare her dress with an intention to outrage her modesty and they damaged the hotel items etc.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the 4 CC 11537 OF 2013 statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court has taken the cognizance of the offences punishable under sections 448, 427, 323, 324, 354 R/w Section 34 of IPC. As per the directions of the court, CC.No.11537 of 2013 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claim to be conversant with. But they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses. 5 CC 11537 OF 2013
5. Prosecution has examined CW1 as PW1, CW2 as PW2, CW4 as PW3, CW6 as PW4. As could be seen from the order sheet CW3 and 5 and CW7 to 11 have been dropped, as the prosecution did fail to secure their presence and to minimize the time consumption on the adjudication of this matter.
6. After completion of examination of CW6 i.e., PW4, the court has posted this matter for recording of statement of accused under section 313 of Cr.P.C. Said statement came to be recorded. During, the recording of the said statement, the accused did not choose to adduce evidence and they denied the incriminating circumstances explained to them. This court posted this matter for hearing of arguments.
7. Heard the learned Sr.APP.
8. Heard the learned counsel for accused. 6 CC 11537 OF 2013
9. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, on aforementioned date, time and place, with an intention to assault PW2, the accused altogether have trespassed inside the hotel premises at Property No.130/5 belongs to PW1 and accordingly, these accused are liable to be punished for an offence punishable under section 448 R/w Section 34 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, time and place, at the said premises, the accused have damaged the articles present at the hotel and caused monetary loss to PW1, which is beyond Rs.50/ and therefore all the accused are liable to be punished for an offence punishable under section 427 R/w Section 34 of IPC ?
3) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, time and place, these accused have assaulted both PW1 and 2 in their barehands and accordingly they are liable to be punished for an offence punishable under section 323 R/w 34 of IPC as both PW1 and 2 suffered pains?
7 CC 11537 OF 2013
4) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, time and place, these accused have assulted PW2 using a knife and Iron rod and all accused have aided each other for the purpose of said assault and accordingly Pw2 suffered blood injuries and therefore, all these accused shall be punished for an offence punishable under section 324 R/w Section 34 of IPC ?
5) Whether the prosecution proves beyond reasonable doubt that, on aforementioned date, time and place, these accused after assaulting PW1 have misbehaved with PW2 and they did hold her dress and have put their hands near her breast portion and damaged her cloth and accordingly all accused are liable to be punished for an offence punishable under section 354 R/w Section 34 of IPC ?
6) what order ?
10. Above points have been answered as under; Points' no.01 to 5: In the Negative Point no.06: As per final orders for the following reasons...;
8 CC 11537 OF 2013 REASONS The prosecution is duty bound to prove the guilt alleged as above against accused. The burden to prove the aspects stated herein above against the accused, heavily rests upon the prosecution. The points aforementioned have been taken up separately for discussion.
11. Points No.01 ; PW1 during her examination deposed that on 18/07/2011 at about 7.00 p.m., when she was working inside the kitchen at the said hotel, these accused tried to enter inside the hotel premises. She resisted them. One amongst those persons kicked her on her abdomen. Her husband PW2 rushed to the spot. But these accused asssulted him using a knife and an Iron rod and these accused closed the kitchen door and assaulted her husband very recklessly and she fell down and therefore, she could not depose exactly as to who all have assaulted both of them. Thereafter both of them were shifted to 9 CC 11537 OF 2013 the hospital for the purpose of treatment and therefore they did submit the information to the police on 20/07/2011. Thereafter police did draw a mahazar. Further, she identified Mo.1 and 2 the dresses stated to have been used by them during the incident. Further she identified a knife and an Iron rod and they also have been marked as Mo.3 and 4. She has further deposed that a gold chain and the cash of Rs.6,000/ were missed from the said premises and these accused have damaged the plates and other items in the hotel/mess worth Rs.25,000/. She further deposed that she took a treatment thereafter and police did draw a mahazar in her presence.
12. As could be seen from her cross examination, questions regarding the permission of BBMP to run mess/ hotel etc, have been put and the questions regarding the population density in the vicnity of the aforementioned area also have been put. Further the 10 CC 11537 OF 2013 contents of the complaint specifically with respect to the identification marks of the persons allegedly assaulted him etc, also have been questioned and the mode of submission of the first information also has been questioned and timings as to her visit to obtain treatment both at Kannahalli hospital and St.Johns hospital also came to be questioned and however she has answered that in her first information statement many of those aspects have not been stated.
13. Be that as it may be, but in, her further cross examination, the timings regarding the alleged incident and also regarding the number of accused present during the said incident also has been questioned. She has answered that it was about 7.00 p.m., and few customers were present for the purpose of dinner. She has admitted that she has not explained in her information as to why there is a delay of 3 days in submitting the first information. However some overwriting forthcoming on her first infromation 11 CC 11537 OF 2013 has been questioned. She pleaded her ignornace regarding the name of the person who did write the mahazar and the date and time of the mahazar. She further answered that she does know the contents of the mahazar and she does not know kannada language to read and write. Regarding Mo.3 a knife, a suggestion has been put by the learned advocate for the accused that it belongs to her own mess, strangely she has denied it. Further the suggestions regarding Mo.1 to 4 also have been put by denying the entire evidence adduced by her.
14. PW2 deposed in the court exactly similar to what has been deposed by his wife PW1. There is some difference in his evidence as to the date and time of the alleged incident. It has been differently narrated by him during his evidence. But, the evidence as to incident has been deposed similarly to what has been deposed by PW1.
12 CC 11537 OF 2013
15. During his cross examination, he pleaded ignorance on a point whether these accused are coolie workers belong to his area or not and he denied the suggestion that these accused often visit his hotel. PW2 also has been questioned regarding his right to carry out the hotel business and also on the contents of his complaint. He denied the suggestions which came to be put on him by the learned advocate appearing for the accused denying his entire evidence. Apart from bare denial as to the accusations present against accused, nothing much has been questioned.
16. As could be seen from the record, PW3 is a witness for Mahazar and he supported the case by deposing that in his presence, the IO has seized MO.1 to 4 and he has deposed further that on 21/07/2011, he had been to the hotel to have the food and he did see the police drawing the mahazar at the spot where the alleged incident took place.
13 CC 11537 OF 2013
17. As could be seen from his cross examination, he has answered that he does not know to read and to write in the kannada language and he has affixed his signature on Ex.P2Mahazar in the police station and he does not know the contents of the same and police took his signature. However, during his further cross examination, nothing much has been elicited by the learned advocate appearing for accused.
18. As could be seen from the record, PW4 is a doctor.
He deposed that on 18/07/2011 at about 10.00 p.m., PW1 was taken before him, with a history as to assault, he found tenderness over the lower abdomen portion of PW1 and he has issued a certificate as per Ex.P3 opining that the above sort of injury was a simple injury and it might have been caused with the help of a blunt object.
19. He further deposed before the court that on the very same day at about 10.30 p.m., he examined PW2 as 14 CC 11537 OF 2013 well. He found during his examination a cut wound of 5 X 1 cm on the Left Scapular region and a cut wound on the left arm of PW2 measuring 5 X 1 cm. CT Scan examination as to brain and Xray examination both came to be done and found normal and they have been certified to be simple injuries and they were fresh as on the time of his examination.
20. As could be seen from his cross examination, he has admitted the suggestion that, if somebody would fall on a blunt object there is every chance of suffering similar injuries and he further admitted that upon Ex.P3, his seal and signature are not forthcoming.
21. Taking into consideration the nature of the case and the nature of the entire accusations present upon them and the evidence of the aforementioned, what is clear is, only the husband and wife the PW1 and 2 respectively have supported the case of the prosecution in toto. The case of the prosecution is 15 CC 11537 OF 2013 that there has been a previous enmity between these parties, as the PW2 had quarrel with accused No.1 allegedly herein. Therefore, as rightly argued by the learned advocate appearing for the accused, there is every chance where the PW1 and 2 might have deposed before the court only to ensure that these accused are put to trouble. Be that as it may be, but so far as the strength of the evidence of the prosecution is concerned, it is apt to say that the prosecution is expected to prove the case beyond reasonable doubt. But only for the reason that these PW1 and 2 are interested witnessess, it cannot be stated that these accused have to be set free by way of an acquittal. This court is duty bound to examine the entire evidence letin by the prosecution.
22. It is no doubt true that the aforementioned witnesses have been dropped considering the failure of the prosecution to ensure the presence of those witnesses during trial. But still same by itself does not take 16 CC 11537 OF 2013 away the strength of the entire case of the prosecution. Because the evidence of prosecution is present on record and admittedly the PW1 and 2 run the hotel in the aforementioned premises and the PW3 is none other than a witness, who visited their hotel/mess to have food and he has answered inhis evidence that the IO, in his presence has seized Mo.1 to 4 and police have enquired him regarding the same and therefore it is clear that PW3 is a witness for mahazar.
23. However he has put his own evidence to dark by answering that police have secured his signtaure on Ex.P2 Mahazar in the police station. Therefore, though his evidence has been specific regarding MO.1 to 4, it cannot be treated as conclusive. Be that as it may be, but the PW1 and 2 have deposed regarding the date of the incident and time of the incident slightly in different way. But still minor differences as to the date and time of alleged offence cannot take 17 CC 11537 OF 2013 away the over all strength of the entire case. However they have been held to be interested witnesses, considering their previous enmity. With the help of evidence of PW4 what can be believed is only the injuries described in Ex.P3. But it cannot be stated that these injuries stated in Ex.P3 have been caused to PW2 at the instance of these accused. There is a delay of 03 days to register the first information. Same also has not been explained. Therefore, the evidence of the prosecution cannot be stated to be incriminating against the accused. Though the previous enmity may be believed, the previous enmity by itself does not make the case believable. Because the prosecution should have proved the case beyond reasonable doubt. Witnesses should have been properly examined by the prosecution.
24. Becuase admittedly the incident took place inside the hotel and presence of other persons inside the hotel 18 CC 11537 OF 2013 cannot be ruled out and though the PW1 has deposed in her evidence that she was present inside the kitchen and accused have tried to enter the hotel premises and thereafter, those accused having entered inside the hotel, they locked PW2 inside the hotel/mess's kitchen and assaulted on him etc. But to believe that these accused were present as on the alleged date and time at the said hotel the prosecution has not adduced evidence and has not established the case beyond reasonable doubt. Because though the prosecution has alleged that these accused have assaulted both PW1 and 2, still the conclusive proof is warranted.
25. The cross examinations conducted by the learned advocate appearing for the accused on PW1 and 2 may be very ineffective and the questions put on them may be bald etc. But the prosecution shall stand on its own feet. Though the learned advocate appearing for accused has not elicited any answers which would 19 CC 11537 OF 2013 disturb their evidence, only for the reason that there has been a previous enmity between these parties, their evidence cannot be said to be conclusive as aforesaid and therefore the case of the prosecution has been put to dark by the prosecution alone and there is nothing on record to believe that at the instance of these accused only, the PW1 and 2 have suffered pains and injuries etc, and as there is nothing on reocrd regarding the entry of these accused inside the hotel/mess of PW1 and 2, the accusations as to trespass cannot be believed at all and therefore the Point No.1 aforementioned is hereby answered in the Negative.
26. For the purpose of clarity sections 441 and 448 of IPC are hereby reproduced;
Section 441 in The Indian Penal Code
441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or 20 CC 11537 OF 2013 to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
Section 448 in The Indian Penal Code
448. Punishment for housetrespass.-- Whoever commits housetrespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
27. Point No.02: No evidence has been letin by the prosecution to prove that the articles present inside the hotel/mess of PW1 and 2 came to be damaged at the instance of accused which were worth beyond Rs.50/ and therefore in the absence of incriminating evidence on the said accusation, this court has no impediment to say that the prosecution failed to prove the case to the said effect. Hence, the Point No.2 aforementioned is hereby answered in the Negative. 21 CC 11537 OF 2013
28. Points Nos.3 and 4: As the evidence is silent regarding the assault on PW1 and 2 at the instance of accused, as the PW1 and 2 have been held to be interested, taking into consideration the suggestions admitted by PW4 regarding the injuries forthcoming as per Ex.P3 and in the absence of incriminating and conclusive proof against accused, as to assault and injuries etc, Points Nos.3 and 4 aforementioned are hereby answered in the Negative.
29. Point No.05: So far as the accusation as to outraging of modesty of PW1 is concerned, although she has deposed in the court that she has been put to an assault by the accused, she has not deposed anything about in what way her modesty has been outraged. Despite above finding, even if, for the sake of arguments, her evidence is taken into consideration, still her evidence has been mainly focused only with respect to alleged assault on PW2. 22 CC 11537 OF 2013 Her evidence is completely silent regarding her modesty. Therefore, in the absence of the evidence, the case to the said effect cannot be believed at all. Hence, Point No.5 aforementioned is hereby answered in the Negative.
30. For the purpose of clarity Section 354 of IPC is hereby extracted as follows;
Section 354 in The Indian Penal Code
354. Assault or criminal force to woman with intent to outrage her modesty.-- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
31. Point No.6; The circumstances warrant the following operative portion for the foregoing reasons; 23 CC 11537 OF 2013 OPERATIVE PORTION Invoking section 248(1) of Cr.P.C, accused Nos.2 to 4 are hereby acquitted of the offences punishable U/s. 448, 427, 323, 324, 354 R/w Section 34 of IPC.
The bail bonds and surety bonds of the accused Nos.02 to 4 will be in force till completion of the appeal period, thereafter, they shall stand cancelled.
MO's 1 and 2, which are worthless, shall be destroyed after the lapse of an appeal period and MO's 3 and 4 i.e., a Knife and an Iron rod shall be confiscated to state after the lapse of an appeal period.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 20112021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 24 CC 11537 OF 2013 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Gracy Mathew PW.2 : Mathew K.T., PW.3 : Jintho George PW.4 : Dr.Betty Issac List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.2 : Mahazar Ex.P.2(a) : Signature of PW1 Ex.P.2(b) : Signature of PW3 Ex.P.3 : Wound Certificate of of PW1 Ex.P.3(a) : Signature of PW4 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL List of materials marked on behalf of the Prosecution: MO.1 : Chuddidhar MO.2 : Bannian MO.3 : Knife MO.4 : Iron rod S.S.BHARATH XLI (41ST) ACMM, BENGALURU