Bangalore District Court
State By Chandra Layout vs Name : A1. Raghavendra @ Raghu on 2 November, 2018
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IN THE COURT OF THE LIX ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY
Dated this the 2nd day of November 2018
: PRESENT :
Sri B.B. Jakati, B.A., LL.B., (Spl.)
LIX Additional City Civil and Sessions Judge
Bangalore City.
S.C.NO.350/2016
COMPLAINANT : State by Chandra Layout
police station, Bangalore.
V/S
ACCUSED NAME : A1. Raghavendra @ Raghu,
S/o.Govindarao,
Aged about 24 years,
Residing at No.29, 8th cross,
Shivananda, Mudalapalya,
Bangalore - 72.
A2. Basavaraja @ Basava,
S/o. Sharanappa,
Aged about 24 years,
Residing at No.77, 4th Cross,
4th main Road, Panchasheela Nagar,
SC.No.350/2016
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Mudalapalya, Bangalore-72.
A4. Venkatesh @ Sanna
S/o.Ganganna,
Aged about 22 years,
Residing at near Panchasheela Bus
Stand, Panchasheela, Mudalapalya,
Bangalore -72.
A5. Bheemaraj @ Bheema
S/o.Gurupadappa,
Aged about 22 years,
Residing at No.157, 4th cross,
4th Main Road, Kempanna Vatara,
Panchasheela, Mudalapalya,
Bangalore -72.
A6. Rakesh @ Raki
S/o.Venkataraju,
Aged about 23 years,
Residing at Gurulingappa Vatara,
Besides house of Gurulingappa,
Panchasheela, Mudalapalya,
Bangalore -72.
1. Date of Commission : 26.05.2013
of Offence
2. Date of Report : 26.05.2013
of Offence
3. Status of the accused : Accused Nos.1, 2 and 4 to
6 are on bail
SC.No.350/2016
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4. Name of the complainant : Sri Prashanth
5. Date of Commencement :
20.09.2017
of evidence
6. Date of Closing of :
25.06.2018
Evidence
7. Offences complained of : Sections 143, 147, 341,
504, 323, 364, 307 read
with Section149 of I.P.C.
8. Opinion of the Judge : Accused No.1,2 and 4 to 6
not found guilty
JUDGMENT
This case is arising out of charge sheet laid by Sub Inspector of Police, Chandra Layout Police Station, Bengaluru against the accused for the offence punishable under Sections 143, 147, 341, 504, 323, 364, 307 read with Section149 of I.P.C
2. The case of the prosecution in nutshell is that P.W.1/Prashanath, P.W.2/Kiran, P.W.5/Karthik and C.W.2/Balaji are the friends. The accused No.1 to 7 were friends each other. P.W.5 SC.No.350/2016 4 filed complaint against the accused in Chandra Layout Police Station and their case in Crime No.217/2013 was registered against the accused Nos.1 to 7 in Chandra Layout Police Station. In that case the P.W.1 assisted the Police at the time of drawing the Panchanama. This fact was came to the knowledge of the accused and therefore, the accused hatched plan to commit murder of Prashanth. It has been further alleged that on 26.05.2013 at about 9.30 P.M. P.W.1, 2 and C.W.2 were proceeding in 8th cross on motor cycle and at that time, the accused followed P.W.1 and his friends. The accused formed unlawful assembly and assaulted P.W.1. Then the accused have taken the P.W.1 in a bike to drainage situated near Shakti Garden of Kalyananagar. The accused Nos.1 to 7 pushed P.W.1 in the drain and therefore, P.W.1 fell in the drain. Thereafter, the accused have thrown a stone on P.W.1. The P.W.1 avoided that stone and able to escape from the hands of accused. The P.W.1 ran in closed drain for about ½ KM.
SC.No.350/2016 5 towards Nagarabhavi and came out from the drain. When he was proceeding towards his house, he met the Police on the way and informed those Police of the incident. The Police taken P.W.1 to Chandra Layout Police Station. The P.W.1 informed the incident to the Police by filing a written complaint and took treatment in the hospital. During the investigation the Investigating Officer arrested the accused Nos.1, 2 and 4 to 6. The accused No.3 and 7 were absconding. He has recorded the statements of friends of P.W.1 and found that because of the previous enmity, all the accused have attempted to commit murder of Prashanath and for that purpose the accused No.1 have abducted Prashanath by forming unlawful assembly. Accordingly, charge sheet has been filed against the accused Nos.1 to 7 for the above said offences.
3. The Committal Magistrate not able to secure accused Nos.3 and 7. Therefore, the case against accused Nos.3 and 7 SC.No.350/2016 6 came to be split up. The learned Magistrate committed the case of remaining accused for trial. The accused Nos.1, 2 and 4 to 6 were released on bail in the crime stage and now also they are on bail. After committal, the accused appeared through their counsel. After hearing the prosecution and the defence, the charge was framed against accused for offence under Sections 143, 147, 341, 504, 323, 364, 307 read with Section149 of I.P.C. The accused pleaded not guilty and claim to be tried.
4. In order to prove the guilt of the above said accused, the prosecution examined eight witnesses as P.W.1 to P.W.8 and got marked documents at Ex.P.1 to P.5 and Material Object at M.O.1.
5. The accused were examined under Section 313 of Cr.P.C. They have denied the incriminating evidence appearing SC.No.350/2016 7 against them and they have not chosen to lead any evidence in their defence.
6. The learned Public Prosecutor has argued that P.W.1 has spoken to the fact of previous enmity and registration of case against accused Nos.1 to 7 at the instance of P.W.5 in Crime No.217/2013. The P.W.1 was cited as witness in that case and that was the reason for enmity between the P.W.1 and the accused. The evidence of P.W.1 and 5 is sufficient to prove the motive of the accused. He has argued that P.W.1 has stated the unlawful assembly, assault made on him, abduction and attempt to commit murder. Even though P.W.2 has not supported the statement of P.W.1, the evidence of P.W.1 is sufficient to prove such fact. He has argued that evidence of P.W.3, 4 and 7 is sufficient to prove the Panchanama and recovery of M.O.1. There is no delay in SC.No.350/2016 8 registered of FIR. The wounds sustained by P.W.1 has been proved through evidence of P.W.8 and Medical Certificate. On these grounds he submitted that the evidence is sufficient to prove the guilt of the accused and prayed to convict the accused for each of the offences.
7. The learned counsel for the accused has argued that the statement made by P.W.1 that there was case registered against the accused Nos.1 to 5 and he was one of the witnesses in that case has not been proved by producing records of Crime No.217/2013. According to him there are material contradictions in the evidence of P.W.1 in respect of recovery of stone at M.O.1 and also alleged assault and abduction. Therefore, his testimony is not acceptable. He has argued that statement of P.W.1 has not been supported by his own friend P.W.2 and another friend has not been examined by SC.No.350/2016 9 the prosecution. The P.W.5 is the rowdy-sheeter, which has been admitted by him and at his instance P.W.1 deposed falsely against the accused. He has argued that the evidence of P.W.8 and the injuries found on the body of P.W.1 creates doubt in the case of prosecution. On these amongst other grounds, he prayed to give benefit of doubt to the accused and acquit the accused.
8. Having regard to the materials placed on record and the submissions made by both the parties, the following points arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 on 26.05.2013 at about 9-30 p.m. at Shivananda Nagar, 8th cross, and at Kalyanaga Nagar, near Shakthi Garden, Bengaluru formed an unlawful assembly in order to commit murder of C.W.1-Prashanth and thereby SC.No.350/2016 10 committed the offence punishable under Section 143 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 formed an unlawful assembly in order to commit murder of CW-1 Prashanth and in furtherance of common object of such assembly used force or violence on CW-1 with stone and thereby committed the offence of rioting and thereby committed the offence punishable under section 147 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 formed an unlawful assembly and in furtherance of common object of such assembly wrongfully restrained CW-1 in order to commit his murder and thereby committed the offence punishable under section 341 read with section 149 of IPC?
SC.No.350/2016 11
4. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 formed an unlawful assembly and in furtherance of common object of such assembly intentionally insulted CW-1 Prashanth by abusing him in filthy language and thereby committed the offence punishable under section 504 read with section 149 of IPC?
5. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 formed an unlawful assembly and in furtherance of common object of such assembly, voluntarily caused hurt to CW-1 Prashanth by assaulting him and thereby committed the offence punishable under section 323 read with section 149 of IPC?
6. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1, 2 and 4 to 6 along with other accused No.3 and 7 formed an SC.No.350/2016 12 unlawful assembly and in furtherance of common object of such assembly, abducted CW-1 Prashanth and taken him near Shakthi Garden, Kalayana Nagar, Bangalore City, with an intention to commit his murder and thereby committed the offence punishable under section 364 read with section 149 of IPC?
7. Whether the prosecution further proves beyond reasonable doubt that, on the said date, time and place the accused No.1,2 and 4 to 6 along with other accused No.3 and 7 formed an unlawful assembly and in furtherance of common object of such assembly, pushed CW-1 Prashanth into drainage and thrown stone on his body with an intention to commit his murder and thereby attempted to commit his murder and thereby committed the offence punishable under section 307 read with section 149 of IPC
9. My findings to the above points are as under:-
Point Nos.1 to 7 :- In the Negative for the following:-
SC.No.350/2016 13 REASONS
10. POINT NOS.1 TO 7 :- The P.W.1 is the victim and P.W.2 is the eye witness. P.W.3 and 4 are the panch witnesses to the scene of offence Panchanama at Ex.P.2. P.W.5 is the friend of P.W.1, who filed complaint registered in Crime No.217/2013. P.W.8 is the Medical Officer, who has given treatment to P.W.1. P.W.6 and 7 are the Investigating Officers.
MOTIVE
11. In first information at Ex.P.1 the P.W.1 has stated that on 18.05.2013 the accused have assaulted P.W.5/Karthik and therefore, Karthik filed complaint and therefore, Police came to the spot to draw Panchanama on 19.05.2013. For that Panchanama he signed as witness, which came to the knowledge of accused. This is the reason for enmity and motive for attack. The P.W.1 in his examination-in-chief in Para No.5 has stated that one week prior to the present incident the accused assaulted P.W.5/Karthik SC.No.350/2016 14 and that incident was witnessed by him. The Police shown him as witness and because of this reason, the accused have assaulted him. The P.W.1 not stated that he was cited as panch witness in the Panchanama, which has been shown in Ex.P.1 and on the contrary it has been stated that he was the eye witness.
12. The P.W.5 has stated that in the complaint filed by him against the accused for the incident dated 18.05.2013, the P.W.1 was cited as witness and therefore, the accused had given threat to P.W.1. He has also not disclosed whether P.W.1 was cited as panch witness or eye witness in the earlier case.
13. In the charge sheet it has been shown that complaint filed by P.W.5 was registered in Crime No.217/2013 of Chandra Layout Police Station. The Investigating Officer not collected any of the records of Crime No.217/2013 to prove the fact of registration of criminal case against the accused at the instance of P.W.5 by showing P.W.1 as eye witness or panch witness. The SC.No.350/2016 15 records of Crime No.217/2013 required to establish the fact that P.W.1 was cited as eye witness or panch witness. Therefore, the non production of such records is fatal to the case of the prosecution.
14. The P.W.7/Investigating Officer in the cross- examination has admitted that P.W.5 is the rowdy-sheeter of the Chandra Layout Police Station and many criminal cases have been registered against him. The registration of cases in Chandra Layout Police Station has also been admitted by P.W.5. These admissions show that the P.W.5 was the rowdy-sheeter and there was enmity between the accused and P.W.5. The P.W.1 is the friend P.W.5 which has been admitted by both witnesses. These evidence show that there was no motive on the part of the accused against the P.W.1 to commit any crime because of the registration of the case in Crime No.217/2013 at the instance of P.W.5. The allegation made by the prosecution itself shows that SC.No.350/2016 16 there was enmity between the P.W.5 and the accused. This enmity may be the reason for registration of the crime against the accused at the instance of P.W.5 by showing the name of P.W.1. For these reasons, I hold that the prosecution failed to prove the motive on the part of the accused to commit murder of the P.W.1.
PROOF OF INCIDENT
15. The P.W.1 has stated that he and his friends P.W.2 and C.W.2 were traveling on motor cycle bearing registration No.KA-03-HA-2710 which was stopped by the accused. He states that the accused have assaulted him through bare hands and abused him in filthy language and pushed him in drainage. He also states that after pushing in the drainage at about 10.00 P.M., stone was thrown towards him which was hit to his left shoulder. He has also stated that from the drainage he ran towards Nagarabhavi and came to the drainage near Canara Bank Colony and thereby escaped from the hands of accused No.1 to 7. He SC.No.350/2016 17 states that Police met him on the way to his house, they have taken to the Police Station, Police taken him to Vinayaka Hospital for treatment and then he filed first information at Ex.P.1.
16. The P.W.2 who is his friend not supported his statement. The C.W.2 is another friend of P.W.1 not been examined. So, there is no corroboration to the evidence of P.W.1 by his own friends. There are no other eye witnesses cited in the charge sheet. In the alleged crime the evidence of P.W.1 alone is available. The P.W.1 is the friend of P.W.5 and he is the victim. Therefore, the evidence of P.W.1 has to be scrutinized carefully to ascertain whether he is believable witness.
17. The Investigating Officer or the P.W.1 not spoken the width, length and height of drainage wherein the P.W.1 was pushed. In the cross-examination the P.W.1 has stated that he ran in the drainage for abut 500 meters in order to escape from the hands of the accused. In the cross-examination of P.W.7 it SC.No.350/2016 18 was elicited by the accused themselves that the height of drainage was 8 to 10 feet. The accused themselves have suggested that height of drainage was 15 to 20 feet. The statement made by P.W.7 and suggestion made by the accused show that the drainage was having the height of 8 to 10 feet. In that drainage there was a possibility of a person to run from one point to other point. Therefore, the statement of P.W.1 that he ran from the place where he was pushed and got up near Canara Bank Colony can be accepted subject to reliability of other statements.
18. The P.W.1 in his cross-examination has not stated the height of flowing drain water or the silt in the drainage. Even the Investigating Officer not ascertained the height of water or the silt in the Panchanama or in any of the records. Such fact is required to ascertain whether there was possibility to a man to run in a closed drainage for about 500 meters.
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19. The P.W.1 has stated that he ran in closed drainage for about 500 meters. If that fact is to be admitted, necessarily his clothes must have been wet and that has been noticed by the Police who taken the P.W.1 to the Police Station or the P.W.6, who has registered the crime or the P.W.8, who has given medical treatment to P.W.1. The P.W.1 not stated that his clothes were wet or 'dirty. Even P.W.6 and 8 have not stated that when they saw P.W.1, his clothes wee dirty and they removed such clothes. Therefore, the silence on the part of P.W.1, 6 and 8 about the dirty clothes creates doubt about running in closed drainage.
20. According to the prosecution the drainage on the spot was not dried, but it was flowing drainage. If that fact has to be accepted, then necessarily there will be silt, hard objects like glass, iron pieces in the drainage. Surprisingly no injury is found on the legs of P.W.1 when he was examined by P.W.8. when the P.W.1 states that he ran in closed drainage for about 500 meters, SC.No.350/2016 20 the absence of injuries on his leg falsify such statement and it creates doubt in the case of prosecution.
21. The P.W.1 has stated that after pushing him in the drainage, one of the accused has thrown stone on him, which hit to his left shoulder and therefore, he sustained injury. But in the wound certificate at Ex.P.5, such injury is not shown. Even the P.W.8 has not stated the injury on left shoulder of P.W.1. This is another material contradiction in the evidence of P.W.1 and 8.
22. The P.W.1 in the cross-examination has stated that he saw the stone at M.O.1 first time before the court when he has given his evidence. But in the Panchanama at Ex.P.2 it has been shown that P.W.1 himself shown the stone at M.O.1 which was fallen inside the drainage and it was taken out by P.W.1 and thereafter, it was handed over to the Police in presence of panch witnesses. This fact in Ex.P.2 contradicts with the oral evidence of P.W.1. Even the P.W.3 and 4 not supported the case SC.No.350/2016 21 of the prosecution that M.O.1 was fallen inside the drainage and it was taken out by the P.W.1 before handing over it to the Police. Therefore, the prosecution has failed to prove that M.O.1 was fallen inside the drainage, it was taken out by P.W.1 at the time of Panchanama at Ex.P.2. These evidence on record also creates doubt in the evidence of P.W.1.
23. The P.W.1 in his evidence has stated that totally seven accused have assaulted him by their bare hands and even kicked him. Looking to the injures No.1 to 3 shown in Ex.P.5, the possibility of assaulting to P.W.1 by seven accused creates doubt. Therefore, even on this ground the evidence of P.W.1 is not acceptable. Considering these evidence on record, I hold that P.W.1 is not trust-worthy to believe to prove the unlawful assembly of accused, abduction and attempt said to be made by accused to commit murder.
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24. The P.W.3 and 4 are the panch witnesses cited in Panchanama at Ex.P.2. Both of them initially not supported the case of the prosecution. The learned Public Prosecutor cross- examined both witnesses and in the cross-examination both witnesses have supported the case of the prosecution. In the cross-examination of defence, the P.W.3 has admitted that he does not known the contents of Panchanama. However, he stood to the other statements narrated in the cross-examination of prosecution. The evidence of P.W.3 and 4 show that they were present when P.W.7 went to the scene of offence to draw Panchanama and M.O.1 was recovered. The evidence on record show that M.O.1 was not inside the drainage, but it was near the scene of offence and it was taken by the Police. The evidence of P.W.3 and 4 support the statement of P.W.7 about his visit and drawing of Panchanama. The scene of offence is proved through SC.No.350/2016 23 the evidence of these witnesses. But the recovery of M.O1 in the manner in which it has been stated in Ex.P.2 has not been proved.
25. The alleged incident took place between 10 to 11 P.M. on 26.05.2013. Ex.P.1/complaint was filed on 27.05.2013 at about 2.25 A.M. The P.W.1 took treatment in the hospital at about 11.45 P.M. The FIR was registered at 2.25 A.M. Looking to these timings, it is found that without any delay the FIR was registered.
CONCLUSION
26. The prosecution not established the motive on the part of accused Nos.1 to 7 to commit various acts against P.W.1 as alleged in this case. the prosecution has not established the recovery of M.O.1 from inside the drainage. The prosecution not established the fact that accused Nos.1 to 7 have abducted the P.W.1 by forming unlawful assembly with an intention to commit murder and thereby attempted to commit murder of P.W.1. The SC.No.350/2016 24 evidence of P.W.1 is found insufficient to prove all those facts. Therefore, I hold that the accused shall not be held guilty for any of the offences. Accordingly, I answer these points in the Negative and proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused No.1, 2 and 4 to 6 are acquitted for the offences punishable under Sections 143, 147, 341, 504, 323, 364, 307 read with Section149 of I.P.C.
Their bail bonds and surety bonds stand cancelled.
Seized properties are ordered to be retained as split up case against other accused is pending.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 2nd day of November, 2018).
(B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
SC.No.350/2016 25 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Prashanth P.W.2 Kiran P.W.3 Saravana P.W.4 Balaji P.W.5 Karthik P.W.6 Chikkanna P.W.7 Somashekhar S. P.W.8 Dr. R. Shashikanth
LIST OF DOCUMENTS MARKED FOR ROSECUTION:
Ex.P.1 Complaint by P.W.1 Ex.P.1(a) Signature of P.W.1 Ex.P.1(b) Signature of P.W.6 Ex.P.2 Mahazar Ex.P.2(a-c) Signature of P.W.1, 3 and 4 Ex.P.3 Statement of P.W.2 Ex.P.4 FIR Ex.P.4(a) Signature of P.W.6 Ex.P.5 Wound certificate Ex.P.5(a) Signature of P.W.8
LIST OF WITNESSES EXAMINED FOR DEFENCE: - NIL LIST OF DOCUMENTS MARKED FOR DEFENCE:- NIL SC.No.350/2016 26 LIST OF MATERIAL OBJECTS MARKED:-
M.O.1 - Small size stone (B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
SC.No.350/2016 27 02.11.2018 Judgment pronounced in the open court (vide separate judgment) with the following operative portion:
ORDER Acting under Section 235 of Cr.P.C., the accused No.1, 2 and 4 to 6 are acquitted for the offences punishable under Sections 143, 147, 341, 504, 323, 364, 307 read with Section149 of I.P.C.
Their bail bonds and surety bonds stand cancelled.
Seized properties are ordered to be retained as split up case against other accused is pending.
(B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
SC.No.350/2016 28