Bangalore District Court
State By Police Sub vs Unknown on 6 February, 2015
IN THE COURT OF FAST TRACK - XI(SESSIONS)
JUDGE, BANGALORE
PRESENT
Sri.N.R.CHENNAKESHAVA, B.A., LL.B,
Presiding Officer, FTC (SESSIONS)- XI,
Bangalore.
DATED THIS THE 6th DAY OF FEBRUARY, 2015
S C No. 127 / 2014
COMPLAINANT : State By Police Sub-
Inspector, Hebbala Police
Station, Bengaluru
(Reptd by Public Prosecutor)
/ Vs /
ACCUSED :
1. Deepu S/o Shivalingaiah,
Aged about 27 years
No.307, S.S.A. Road,
Kunthigrama 'A' Block
Hebbala, R.T.Nagara Post
Bengaluru.
2. Srinivas @ Bonda S/o
Govindaiah, Aged about
24 years, No.68, S.S.A.
Road, Kunthigrama 'A'
Block, Hebbala,
R.T.Nagara Post,Bengaluru.
(By Sri K.V.Prakasha, Adv)
2 S.C.No. 127/2014
Date of Commission of 27.12.2012
offences
Date of report of 28.12.2012
offences
Name of complainant Sri Harisha
Date of recording of 20.08.2014
evidence
Date of closing of 23.01.2015
evidence
Offences complained of U/Sec.341, 323, 506 and
307 r/w Sec. 34 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
Police Sub-Inspector, Hebbala Police Station, Bengaluru, has filed this charge sheet against A1 and A2, of the offences p/u/sec. 341, 323, 506 and 307 r/w Sec. 34 of IPC.
2. Brief facts of prosecution case are as follows:
On 27.12.2012 at about 9.10 p.m., within the limits of Hebbala P.S., at Brahmalingeshwara Bakery and Condiments, situated near Sumangali Sevashrama Road, 3 S.C.No. 127/2014 while CW Harish and CW2 Sridhara @ Raghava, were consuming tea, A1 and A2 holding with lethal weapons like iron rod and hokey stick, with there common intention to kill CW1, have voluntarily obstructed CW1 and CW2, and caused hurt on their person, beating from hands and that apart A1 made an attempt to kill CW1 beating him by means of iron rod on the right and left portion of head and at the same time, A2 assaulted CW1 on his left leg, beating by means of hockey stick. More so, at the relevant point of time, A1 and 2 also assaulted CW2 Sridhara, beating from hands and then A1 and A2 threatened CW1 and CW2, to do away their life and thereby A1 and A2 have committed the alleged offences.
Hence, the charge sheet.
3. After filing charge sheet, Committal Court took cognizance of the offences p/u/sec.341, 323, 506 and 307 r/w Sec. 34 of IPC and on 7.2.2014 committed the case to Sessions. Learned Magistrate has complied the 4 S.C.No. 127/2014 provisions of Sec.207 and 209 of Cr.P.C. After receipt of entire committal records, case has been registered as SC No.127/2014 and then made over to this court for disposal, in accordance with law. A1 and 2 are on regular bail and are duly represented by their counsel. After hearing, charges framed and explained to A1 and A2, of the offences p/u/Sec.341, 323, 506 and 307 r/w Sec. 34 of IPC. However, A1 and A2 pleaded not guilty of the charges leveled against them and they claim to be tried. Hence the case has been posted for trial. Prosecution in all examined 07 witnesses as PW1 to PW7, got exhibited 15 documents at Ex.P.1 to Ex.P.15 and got identified M.O.1 to M.O.3 and closed its side. After conclusion of evidence from prosecution side, A1 and A2 are examined, as required under Sec.313 of Cr.P.C. However, they denied the incriminating evidence adduced against them.
4. Heard argument from both sides. I have perused the available materials on record.
5 S.C.No. 127/2014
5. Now the points that arise for my consideration are:
1. Whether the prosecution beyond all reasonable doubt proves that on 27.12.2012 at about 9.10 p.m., within the limits of Hebbala P.S., at Brahmalingeshwara Bakery and Condiments, situated near Sumangali Sevashrama Road, while CW Harish and CW2 Sridhara @ Raghava, were consuming tea, A1 and A2 with their common intention, holding with lethal weapons like iron rod and hokey stick, have voluntarily obstructed CW1 and CW2 and thereby A1 and A2 have committed an offence p/u/Sec.341 r/w Sec. 34 of IPC?
2. Secondly, whether the prosecution beyond all reasonable doubt proves that on the said date, time and place, A1 and A2, in furtherance of their common intention, after obstructing CW1, have caused hurt on their person, beating from hands and 6 S.C.No. 127/2014 thereby A1 and A2 have committed an offence p/u/Sec.323 r/w Sec. 34 of IPC?
3. Thirdly, whether the prosecution beyond all reasonable doubt proves that on the said date, time and place, A1 and A2, in furtherance of their common intention, after obstructing CW1 and causing hurt to CW1 and CW2, have threatened to do away with their life and thereby A1 and A2 have committed an offence p/u/Sec.506 r/w Sec. 34 of IPC?
4. Fourthly, whether the prosecution beyond all reasonable doubt proves that on the said date, time and place, A1 and A2, in furtherance of their common intention, after obstructing CW1 and threatening to do away with the life of CW1 and CW2, have attempted to kill CW1, beating on his head by means of iron rod by A1 and A2 beating on the left leg of CW1, by means of hockey stick and thereby A1 7 S.C.No. 127/2014 and A2 have committed an offence p/u/Sec.307 r/w Sec. 34 of IPC?
5. What Order ?
6. My answer to the above points are :
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 : As per the final order for the Following:
REASONS
7. POINT NOs.1 to 4 : Since these points are interconnected with each other, for the sake of convenience, I would like to take down these points together for discussion and answer.
8. It is the specific case of prosecution that the incident alleged to have been took place on 27.12.2012 at about 9.10 p.m. within the limits of Hebbala P.S., at Brahmalingeshwara Bakery and Condiments, nearby 8 S.C.No. 127/2014 Sumangali Sevashrama Road. In order to prove the scene of occurrence of event, prosecution has relied upon Ex.P.11 and evidence of PW6 Shivaputrappa T.Magol; the I.O. in this case.
9. PW6 deposes that he has drawn Ex.P.11 at the scene of occurrence of event in the presence of CW4 Sathisha, CW8 Tanveer and CW10 Harish Kumar. PW 6 in his cross-examination denies the suggestion that he has not at all visited the spot and has drawn Ex.P.11 at police station. Contents of Ex.P.11 disclose that PW6 said to have been drawn Ex.P.11 at the alleged scene of occurrence of event in the presence of CW4, CW8 and CW10. It is important to note that in spite of taking coercive steps, CW4, CW8 and CW10 are not secured and more so, in view of report submitted by concerned police, evidence of CW4, CW8 and CW10 is taken as closed, as securing of CW4, CW8 and CW10 in the near future, is very remote. Therefore, in order to prove the scene of 9 S.C.No. 127/2014 occurrence of event, prosecution has only relied upon the sole testimony of PW6. Assuming that accused have taken defense that PW6 has not at all drawn Ex.P.11 at the scene of occurrence of event, at the same time, nothing much contrary is elicited from the mouth of PW6 to disbelieve his evidence. Therefore, basing on mere suggestion put to PW6, very evidence of PW6, cannot be discarded at all. Hence, I safely rely oral evidence of PW6, and Ex.P.11 to come to the conclusion that the alleged incident took place as narrated at Ex.P.11.
10. According to prosecution, PW1 Harish suffered simple injuries on his person due to the alleged assault inflicted by A1 and A2, beating him means of M.O.1 and M.O.2. In order to prove the nature of injuries found over the person of PW1, prosecution has relied upon evidence of PW7 Dr.Poorneshwara Raju, Surgeon attached to Poornima Hospital, R.T.Nagar, Bengaluru and also Ex.P.15; the wound certificate issued by PW7. 10 S.C.No. 127/2014
PW7 deposes that on 27.12.2012 at about 10.30 p.m. while he was at the Hospital, PW1 Harish was brought to Hospital by PW3 Yogi with an history of assault and upon examination of PW1, lacerated wound measuring 2 X ½ cm (bone deep) present at left parietal region of head and another lacerated wound measuring 2 X ½ cm (bone deep) present at the occipital region and the said injuries were fresh in nature. PW7 deposes that both injuries were simple in nature and in this regard he issued wound certificate at Ex.P.15. He opines that such kind of injuries could be caused, beating by means of M.O.1 and M.O.2. PW7 in his cross-examination denies the suggestion that similar kind of injuries found over the person of PW1, could be caused when a sharp edged thing come into contact with the head, when a person accidentally falls on the road from a two wheeler. However, PW7 voluntarily deposes that injury No.1 could be happen if a person accidentally falls on road from motor cycle. He denies the suggestion that if a person 11 S.C.No. 127/2014 accidentally falls on the road from a motor cycle and at that juncture if any sharp edged glass piece come into contact to the back portion of the head, then injury No.2 could be caused. PW7 denies the suggestion that even though no injuries were found over the person of PW1, he cooked up Ex.P.15 at the request of I.O.
11. I have carefully gone through the oral evidence of PW7 coupled with Ex.P.15. On going through Ex.P.15 it appears that PW1 while admitting at Poornima Hospital, he complained before PW7 that on 27.12.2012 at about 9.20 p.m., he was assaulted by 4-5 unknown persons by hands stones. However, it is the case of prosecution that A1 and A2 have assaulted PW1 by means of M.O.1 and M.O.2. More so, PW1 deposes that he was assaulted by A1 and A2 by means of M.O.1 and M.O.2. However, PW1 at Ex.P.15 categorically complains before PW 7 that he was assaulted by some 4-5 unknown persons by hands and stones. Upon careful scrutiny of 12 S.C.No. 127/2014 evidence of PW1 and PW2 coupled with Ex.P.15, it creates lot of doubt in the minds of Court to hold that injuries found over the person of PW1, were due to the assault by means of M.O.1 and M.O.2 itself. On the other hand, on going through evidence of PW1 and PW7, entire case of prosecution version changes to the effect that PW1 was assaulted by means of M.O.1 and M.O.2 i.e., hockey stick and iron rod. More importantly, PW7 categorically deposes that such kind of injuries found over the person of PW1 could be caused by means of M.O.1 and M.O.2 itself. Hence, under the above circumstances, it is not at all safe to rely the evidence of PW7 to hold that the injuries found over the person of PW1, were inflicted by means of M.O.1 and M.O.2 itself, since PW1 at Ex.P.15 complains with PW7 that he was assaulted by 4-5 unidentified persons by hands and stones. Therefore, I hold that prosecution has failed to prove that the injuries which are found over the person of 13 S.C.No. 127/2014 PW1, were the resultant of assault inflicted by A1 and A2 on the head of PW1, by means of M.O.1 and M.O.2 itself.
12. It is the case of prosecution that, while PW1 Harish and PW2 Sridhara, were consuming tea at Brahmalingeshwara Bakery and condiments, near Sumangali Sevashrama Road, Hebbala, A1 and A2 by picking up quarrel with PW1 and PW2, have voluntarily obstructed them and assaulted from the hands and threatened to do away with their life and further made an attempt to kill PW1, beating by means of M.O.1 and M.O.2. In order to connect A1 and A2 to the guilt circumstances, prosecution has mainly relied upon the evidence of PW1 and PW2, who are the victims and also evidence of PW3 Yogi, PW4 Kiran and PW5 Somashekara, who are stated to be the direct witnesses. It is relevant to note that though PW1 Harish being the victim deposes few incriminating circumstances as against A1 and A2 that he was assaulted by A1 by means of M.O.2 and A2 14 S.C.No. 127/2014 by means of M.O.1, at the same time PW1 in his cross- examination totally goes against his chief examination version. More so, PW1 while cross-examined on behalf of accused, he disputes that he lodged Ex.P.1 to the police. That apart, he disputes alleged recovery of M.O.3 under Ex.P.2. He admits the suggestion that he was not at all assaulted by accused by means of M.O.1 and M.O.2. Added to this PW1 deposes that he has not at all given further statement before I.O. Since PW1 deposes different version in his examination-in-chief as well as cross- examination, he again subjected to cross examination by prosecution, after treating him as hostile and again he re-examined. In spite of it, nothing much contrary is elicited from his mouth to hold that he deposes false evidence before the Court. In my view, assuming that PW1 while cross examined on behalf of, prosecution, he admits the suggestion that A1 and A2 assaulted him, by means of M.O.1 and M.O.2, at the same time, PW1 at Ex.P.15, complains before PW7; the doctor, that he was 15 S.C.No. 127/2014 assaulted by some 4-5 unidentified persons, beating by hands and stones. Hence, under such circumstances, it is not at all safe to hold that injuries that were found over the person of PW1, was the resultant of assault inflicted by A1 and A2 , by means of M.O.1 and M.O.2.
13. PW2 Sridhara @ Raghava who is stated to be one of the victim, has not whispered in his evidence that he was assaulted by the accused and accused have assaulted PW1 by means of M.o.1 and M.O.2. He deposes that he do not anything about the alleged incident and for the first time he identifies M.O.1 to M.O.3 before the court. Since, PW2 has not supported the case of prosecution, he is subjected to cross- examination by the prosecution, after treating him as hostile witness. In spite of it, nothing much contrary is elicited from his mouth to hold that he deposes false evidence before the Court. More so, PW2 also denies his 16 S.C.No. 127/2014 previous statement at Ex.P.3 said to have been given by him before the I.O.
14. PW3 to PW5 being the independent direct witnesses, also not whispered any incriminating evidence as against accused that A1 and 2 alleged to have assaulted PW1, beating by means of M.O.1 and M.O.2. Since PW3 to PW5 have not supported the case of prosecution, they are subjected to cross-examination by the prosecution, after treating them as hostile witnesses. In spite of it, nothing much contrary is elicited from their mouth to hold that they depose false evidence before the Court. More so, PW3 in his cross-examination disputes the previous statement at Ex.P.4, said to have been given by him before the I.O. Likewise, PW4 and PW5 in their cross-examination also dispute their previous statement said to have been given by them before I.O. at Ex.P.5 and Ex.P.9 respectively.
17 S.C.No. 127/2014
15. According to prosecution, PW6 being the I.O. in this case has seized M.O.1 and M.O.2 under Ex.P.6, on the basis of voluntary statement given by A1 and A2 before him and accordingly, A1 and A2 have lead him and the panchas to the place where they have thrown away M.O.1 and M.O.2, after committing the alleged crime. PW6 deposes that A1 and 2 have lead him and panchas to the drainage nearby Acharya College and accordingly, he has seized M.O.1 and M.O.2 at there instance. According to PW6, A1 and A2 gave their voluntary statement at Ex.P.13 and Ex.P.14 respectively, before him. Though PW6 deposes that he alleged to have seized M.O.1 and M.O.2 under Ex.P.6 on the basis of voluntary statement of accused at Ex.P.13 and Ex.P.14, at the same time, very evidence of PW6 is not corroborated by the evidence of PW5, who is the sole attester to Ex.P.6. PW5 categorically deposes that in his presence M.O.1 and M.O.2 were not at all seized by the I.O. On the other hand, PW5 deposes that he affixed his 18 S.C.No. 127/2014 signature at Ex.P.6 at Hebbala Police station. In spite of subjecting PW5 to cross-examination, nothing much contrary is elicited from his mouth to hold that he was present at the alleged time of seizure of M.O.1 and M.O.2 by PW6 from the drainage, nearby Acharya College.
16. It is also relevant to note that since, PW1 at Ex.P.15 wound certificate, has stated before PW7, that he was assaulted by 4-5 unidentified persons by hands and stones, whatever the case of prosecution that A1 and A2 alleged to have assaulted PW1 by means of M.O.1 and M.O.2, is of no consequence. In this regard, I have already discussed. Hence, I hold that prosecution has also failed to prove the alleged recovery of M.O.1 and M.O.2, which are alleged to be used by A1 and A2, in committing the alleged crime.
17. By scrutinizing evidence of PW1 itself, which does not discloses that A1 and 2 have attempted to kill 19 S.C.No. 127/2014 PW1, beating by means of M.O.1 and M.O.2, since Ex.P.15 goes against to the very root of the case of prosecution, wherein PW1 has stats that he alleged to have been assaulted by un-identified persons from hands and stones. In my view, if at all, PW1 alleged to have been assaulted by A1 and A2 by means of M.O.1 and M.O.2, then he would have stated before PW7 to the effect that he was actually assaulted by means of M.O.1 and M.O.2 itself by accused.
18. Viewed from any angle, I am of the considered view that certainly available evidence on record is in no way sufficient to connect A1 and A2 to the guilt circumstances. On the other hand, available evidence on record discloses with material discrepancies, contradictions, inconsistencies and omissions. Since PW1 being the victim and first informant and PW2 being the victim, PW3 to PW5 being so called eye witnesses, have not supported the case of prosecution. Though 20 S.C.No. 127/2014 prosecution has proved the alleged scene of occurrence of event, at the same time, prosecution has failed to prove the alleged recovery of M.O.1 and M.O.2 under Ex.P.6. That apart PW1 and PW2 in their evidence have not whispered that they were voluntarily obstructed by A1 and A2 and were threatened with dire consequences and A1 and A2 attempted to kill them. Hence, in the above circumstances, certainly, A1 and A2 are entitled to and acquittal acquittal, since prosecution has failed to bring home the guilt of accused, beyond all reasonable doubt, by placing convincing and cogent evidence. For the foregoing reasons, I answer Point No.1 to 4 in the 'Negative'.
19. POINT NO.6 : For the above reasons, I proceed to pass the following :
ORDER Acting under Sec.235(1) of Cr.P.C., A1 and A2 are acquitted of the offences p/u/Sec. U/Sec.341, 323, 506 and 307 r/w Sec. 34 of IPC.21 S.C.No. 127/2014
Bail Bond of A1 and A2 and their Surety Bond stands cancelled.
M.O.1 and 3, since worthless, shall ordered to be destroyed, after appeal period is over. (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 6th day of February, 2015) ( N.R.CHENNAKESHAVA ) PRESIDING OFFICER, FAST TRACK COURT(SESSIONS) - XI BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW1 Harisha PW2 Sridhara PW3 Yogi PW4 Kiran PW5 Somashekara PW6 Shivaputrappa PW7 Dr.Poorneshwara Raju LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Statement of PW1 Ex.P.2 Seizure Mahazar Ex.P.3 Statement of PW2 22 S.C.No. 127/2014 Ex.P.4 Statement of PW3 Ex.P.5 Statement of PW4 Ex.P.6 Seizure Mahazar Ex.P.7 Chit on M.O.1 Ex.P.8 Chit on M.O.2 Ex.P.9 Statement of PW5 Ex.P.10 FIR Ex.P.11 Spot Mahazar Ex.P.12 Report of CW14 Ex.P.13 Portion of statement of A1 Ex.P.14 Portion of statement of A2 Ex.P.15 Wound certificate LIST OF MATERIAL OBJECTS MARKED MO-1 Hockey stick MO-2 Iron rod MO-3 Shirt LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
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PRESIDING OFFICER, FAST TRACK COURT (SESSIONS) - XI BANGALORE.
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