Bangalore District Court
State By Basavanagudi vs No. 1. Naveen K on 16 October, 2021
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S.C.No.42/2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 16th day of October, 2021
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.42/2017
COMPLAINANT:- State by Basavanagudi
Police Station, Bengaluru.
-Vs-
ACCUSED No. 1. Naveen K.,
S/o.Vishwanath,
Aged about 20 years,
R/at No.75, 2nd Cross,
8th Main, 2nd Block, Jayanagar,
Bengaluru.
3. Muniraju N.
S/o.Narayanaswamy,
Aged abut 22 years,
R/at.No.34, Yediyuru,
AK Colony, Behind Umamaheshwari
Temple, Jayanagar 7th Block,
Bengaluru.
(Case against A.2 and 4 split up)
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S.C.No.42/2017
(A5 Dead)
1. Date of commission of offence : 27.4.2014
2. Date of report of offence : 27.4.2014
3. Date of arrest of the Accused : 30.4.2014
4. Name of the complainant : Sri. Murli
5. Date of recording evidence : 4.10.2019
6. Date of closing evidence : 21.8.2021
7. Offences complained of : U/Sec.341, 307
R/w.Sec.34 of I.P.C.,
8. Opinion of the Judge : Offences against
Accused No.1 and 3
not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. Sudheendra Prasad,
Advocate
JUDGMENT
In the present case accused No.1 to 3 stands charged for offences punishable U/s.341, 307 R/w.Sec. 34 of I.P.C. in Cr.No.97/2014 registered at Basavanagudi police station.
2. There are no undisputed facts in this case. 3
S.C.No.42/2017
3. Case of the prosecution in nutshell is as follows; Complainant Cw.1/Murli supported to Cw.10/Mahesh in the matter of theft of chicken on 23.10.2013. This matter created ill-will for accused No.1 against Cw.1. On 27.4.2014 at 7.00 p.m., by forming unlawful assembly with accused No.2 to 5 accused No.1 called Cw.1 to have talk from his New Modern Mens Beauty Parlor situated at Yadiyur Circle, on south end road, within the jurisdiction of Basavanagudi police station. Accused No.1 to 5 took Cw.1 to the backside of the house No.39, raised quarrel, wrongfully restrained. In order to commit murder, accused No.1 stabbed on the chest of Cw.1 by using deadly weapons knife. Survived Cw.1 lodged first information statement. On the basis of the complaint lodged by the complainant, a case for offences punishable U/s.341, 307 R/w.Sec.34 of I.P.C. came to be registered.
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4. During investigation, accused No.4 remained absent. Despite issuance of N.B.W., presence of accused No.4 not traced out. Hence, case against accused No.4 was split up. During the trial, accused No.5 reported to be dead. Hence, case against accused No.5 is abated.
5. Charge being read over and explained to the accused No.1 to 3 as per Section 228 of Cr.P.C. They pleaded not guilty. During the trial, despite issuance of N.B.W. presence of accused No.2 not traced out. Hence, case against accused No.2 is split up. During personal examination U/s. 313 of Cr.P.C., accused No.1 and 3 denied all incriminating circumstances appeared in the evidence recorded on behalf of prosecution. They have not stated anything about registration of this case against them. 5
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6. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused as per Section 234 of Cr.P.C.
7. Now, the points arising for determination are as follows:
1. Whether prosecution proves beyond all reasonable doubt that, on 27.4.2014 at 7.00 p.m., near New Modern Mens Beauty Parlor situated at Yadiyur Circle on south and road within the jurisdiction of Basavanagudi police station, Bengaluru accused No.1 and 3 along with other accused in order to commit offence against Cw.1/ M.Murli, wrongfully restrain him thereby committed offence punishable U/s.341 R/w.Sec.34 of I.P.C. , as alleged in the charge sheet?
2. Whether prosecution proves beyond all reasonable doubt that, on the above said date, time and place, accused No.1 and 3 along with other accused with common intention to commit murder of Cw.1, accused No.1 caused assault on 6 S.C.No.42/2017 the chest and right knee of Cw.1 knowingly that if death occurred, he would be guilty for murder thereby committed offence punishable U/s.307 R/w.Sec.34 of I.P.C. , as alleged in the charge sheet?
3. What Order ?
8. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
9. POINTS NO.1 & 2:- Cardinal principles of the criminal trial is that accused shall be presumed to be innocent till guilty is proved. As per Section 102 of Indian Evidence Act, burden of proof to prove ingredients of the charges against accused beyond reasonable doubts is on the prosecution. To determine whether prosecution 7 S.C.No.42/2017 succeeded to discharge burden of proof casts U/s.102 of Indian Evidence Act. It is just and necessary to assess evidence adduced, documents produced on behalf of the prosecution.
10. Detail of the prosecution evidence:-F.S.L. Report, F.S.L. Seal, Report, Wound certificate, Requisition, Opinions, Complaint, Statement of Pw.6, F.I.R., Memo, Panchanama, Property Form, Panchanama, Property Form, voluntary statement of accused No.1, voluntary statement of accused No.2, voluntary statement of accused No.3, voluntary statement of accused No.4, voluntary statement of accused No.5, Panchanama, Requisition, Property Form, F.S.L.Report are marked at Ex.P.1 to Ex.P.24.
11. Cw.11/Shanaza Fathima Assistant Director in F.S.L. Madiwala is examined as Pw.1. In her evidence, Pw.1 8 S.C.No.42/2017 deposed with respect to examination of two knives, T-Shirt and Jeens pant, sent by Investigation Officer for examination and on her report as per Ex.P.1. In her opinion, human blood of 'O' group was found on Mo.1 to Mo.4. This witness did not cross-examined by accused side.
12. Cw.13/Chandrashekhara police constable is examined as Pw.2. Pw.2 deposed that on 30.4.2014 he was deputed along with other police to trace the accused persons involved in this case. Accordingly they searched and produced accused/Vishwanath, Naveen, Hemanth, Prashanth and Muniraju before the P.S.I., Kiran with report as per Ex.P.3. This witness is also not cross-examined by the accused side.
13. Cw.10/Mahesh is the circumstantial witness examined as Pw.3. In his evidence, Pw.3 deposed that accused No.1/Naveen along with 4 to 5 persons came to 9 S.C.No.42/2017 attack on him in the matter of theft of chicken. As he was not present, accused persons assaulted on Murali by using knife. This witness is also not cross-examined by the accused side.
14. Cw.12/Dr.Venugopal Senior Specialist at S.D.S.Hospital, Bengaluru examined as Pw.4. In his evidence, Pw.4 deposed with respect of injuries found on the body of Murali at the time of his examination. Pw.4 further identified wound certificate at Ex.P.5 and opinions at Ex.P.6 and Ex.P.7. Pw.4 identified Mo.1/Knife examined by him. Pw.4 stands unrebutted in the cross-examination.
15. Cw.1/Murali who is complainant and injured is examined as Pw.5. In his evidence Pw.5 deposed that Cw.10/Murali is his friend. He do not know accused/Muniraju and others. Around 8 years ago, evening at 7.30 p.m., somebody assaulted on his left side of the stomach by a 10 S.C.No.42/2017 weapon. He sustained bleeding injuries and went unconcious. As it was dark, he was unable to identify the person who assaulted him. He had taken to Bharathi Nursing Home and then to Rajeev Ghandhi Hospital for treatment. Pw.5 identified his signature on Ex.P.8/complaint. He deposed that his signature on Ex.P.8 was taken by police when he was admitted in the hospital. He had not stated that accused persons assaulted him. Further Pw.5 deposed that he had not seen Mo.1 to Mo.4 and he had not given Mo.2 and 3 clothes to police.
16. Pw.5 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.5 by treating him as hostile witness as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions are elicited to show that Pw.5 has deposed false. No such 11 S.C.No.42/2017 admissions is elicited to prove the fact that Pw.5 is won over by the accused persons.
17. Cw.9/Lokesh is witness who had seen the incident examined as Pw.6. In his evidence Pw.6 deposed that he do not know anything about the incident. He do not know Cw.2/Ravikumar and accused persons. He is not aware about the incident taken place with Cw.1/Murali. He came to know about the assault on Cw.1/Murali, when he was admitted in the hospital. He met Cw.1/Murali in the hospital. He did not enquire Cw.1/ Murali about the incident. He had not given any statement before the police.
18. Pw.6 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.6 by treating him as hostile witness as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions are 12 S.C.No.42/2017 elicited to show that Pw.6 has deposed false. No such admissions is elicited to prove the fact that Pw.6 is won over by the accused persons.
19. Cw.18/Kiran V. is examined as Pw.7. Pw.7 is the Investigation Officer who deposed about registration of F.I.R., recording statements of witnesses, seizure of weapons used for commission of offences. Seizure of Mo.1 to 4 articles, collection of medical report of the injured. Further Pw.7 deposed with respect recording volutnary statement of accused No.1 to 5 and recovery on the basis of those voluntary statements. Further Pw.7 deposed with respect to collection of F.S.L.Report/Ex.P.24. Pw.7 identified accused No.3 produced through VC. Accused No.2 and 4 separated from this case and accused No.5 is dead. Pw.7 stands unrebutted in the cross-examination. 13
S.C.No.42/2017
20. Prime witnesses in the case of assault and attempt to murder is the complainant, injured and eye witnesses. In this case Cw.1 complainant, injured Murali is examined as Pw.5. Pw.5 did not support the case of the prosecution. Pw.5 specifically deposed that accused persons are not those persons who assaulted him. He had not given complaint against the accused persons. Cw.9/Lokesh who examined as Pw.6, Cw.10/Mahesh who examined as Pw.3 deposed similar to that of Cw.1/Pw.5. Therefore, prosecution failed to establish the fact of identification of assailants by the injured eyewitnesses. Identification of accused persons by the injured victim is important and relevant evidence U/s.5, 8, 9 and 60 of Indian Evidence Act. Even though Pw.1/Shahanaz Fathima officer of the F.S.L. Pw.4/Dr. Venugopal medical officer who treated the injured. Cw.7/Kiran Investigation Officer deposed in support of the case of the prosecution, turning hostile to the 14 S.C.No.42/2017 case of the prosecution by prime witnesses like complainant injured Pw.5, eyewitness and circumstantial witnesses Pw.3, Pw.6 made the prosecution unable to prove the case against accused beyond all reasonable doubts.
21. Recovery of weapon used for commission of offence on the basis of information given by accused persons in the police custody though relevant and admissible peace of evidence, fact of recovery is deposed by the Pw.7 Investigation Officer but not supported by any independent panch witnesses.
22. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution failed to prove beyond all reasonable doubts that on 27.4.2014 at 7.00 p.m., by farming unlawful assembly with accused No.2 to 5 accused No.1 wrongfully restrained, attempted to murder Cw.1 Murli by stabbing on chest by using deadly 15 S.C.No.42/2017 weapon knife at Yadiyur Circle on south end road, within the jurisdiction of Basavanagudi police station thereby accused committed offences punishable U/s.341, 307 R/w.Sec.34 of I.P.C. Accordingly, points No.1 and 2 are answered in the Negative.
23. POINT NO.3: In view of the above findings on points No.1 and 2, accused No.1 and 3 are entitled for acquittal. Hence, the following order is made;
ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.1 and 3 are hereby acquitted for the offences punishable U/s.341, 307 R/w.Sec.34 of I.P.C.
Their bail bonds and surety bonds shall stands cancelled.
Accused No.1 and 3 are hereby directed to execute fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of 16 S.C.No.42/2017 Cr.P.C., and same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bonds of accused No.1 and 3 for Rs.1,00,000/- (one lakh) each as per Section 437-A of Cr.P.C.
Office is hereby directed to issue release order to the jail authorities to release accused No.1 and 3 if they are not required in any other case.
Jail authorities are hereby directed to release accused No.1 and 3 if they are not required in any other case after obtaining fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of Cr.P.C.
Invoking the provisions U/s.357-A of Cr.P.C. District Legal Service Authority is directed to award compensation to the injured Pw.5/Murli after due enquiry.
Office is directed to send copy of this judgment to District Legal Service Authority 17 S.C.No.42/2017 for further action to award compensation to the injured Pw.5/Murli.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 16th day of October 2021.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Shahanaz Fathima
Pw.2 Chandrashekhar
Pw.3 Mahesh
Pw.4 Venugopal
Pw.5 Murali
Pw.6 Lokesh
Pw.7 Kiran
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S.C.No.42/2017
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 F.S.L.Report
Ex.P.1(a) Signature of Pw.1
Ex.P.2 F.S.L. Seal
Ex.P.3 Report
Ex.P.3(a) Signature of Pw.2
Ex.P.4 Wound certificate
Ex.P.4(a) Signature of Pw.4
Ex.P.4(b) Signature of Pw.7
Ex.P.5 Requisition
Ex.P.6 & Ex.P.7 Opinions
Ex.P.6(a) & Signatures of Pw.4
7(a) Signature of Pw.7
Ex.P.7(b) Complaint
Ex.P.8 Signature of Pw.5
Ex.P.8(a) Signature of Pw.7
Ex.P.8(b) Statement of Pw.6
Ex.P.9 F.I.R.
Ex.P.10 Signature of Pw.7
Ex.P.10(a) Memo
Ex.P.11 Panchanama
Ex.P.12 Signature of Pw.7
Ex.P.12(a) Property Form
Ex.P.13 Signature of Pw.7
Ex.P.13(a) Panchanama
Ex.P.14 Signature of Pw.7
Ex.P.14(a) Property Form
Ex.P.15 Signature of Pw.7
Ex.P.15(a) Voluntary statement of accused No.1
Ex.P.16 Voluntary statement of accused No.2
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Ex.P.17 Voluntary statement of accused No.3
Ex.P.18 Voluntary statement of accused No.4
Ex.P.19 Voluntary statement of accused No.5
Ex.P.20 Panchanama
Ex.P.21 Signature of Pw.7
Ex.P.21(a) Requisition
Ex.P.22 Signature of Pw.7
Ex.P.22(a) Property Form
Ex.P.23 Signature of Pw.7
Ex.P.23(a) F.S.L.Report
Ex.P.24 Signature of Pw.7
Ex.P.24(a)
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
Mo.1 Knife
Mo.2 T.Shirt
Mo.3 Jeens Pant
Mo.4 Knife
Mo.1(a) & Signatures
Mo.4(a)
Mo.1(a) & Signatures of Pw.7
Mo.2(a)
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 20 S.C.No.42/2017 21 S.C.No.42/2017 16.10.2021 Accused No.1 and 3 produced from J.C. through V.C. Sri.Sudheendra Prasad standing counsel is present. Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.1 and 3 are hereby acquitted for the offences punishable U/s.341, 307 R/w.Sec.34 of I.P.C.
Their bail bonds and surety bonds shall stands cancelled.
Accused No.1 and 3 are hereby directed to execute fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
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S.C.No.42/2017 Office is directed to take fresh bail bonds of accused No.1 and 3 for Rs.1,00,000/- (one lakh) each as per Section 437-A of Cr.P.C.
Office is hereby directed to issue release order to the jail authorities to release accused No.1 and 3 if they are not required in any other case.
Jail authorities are hereby directed to release accused No.1 and 3 if they are not required in any other case after obtaining fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of Cr.P.C.
Invoking the provisions U/s.357-A of Cr.P.C. District Legal Service Authority is directed to award compensation to the injured Pw.5/Murli after due enquiry. 23
S.C.No.42/2017 Office is directed to send copy of this judgment to District Legal Service Authority for further action to award compensation to the injured Pw.5/Murli.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.