Bangalore District Court
State By Magadi Road Police Station vs 2. Kiran Kumar.S @ Kiru @ Chainaa on 4 August, 2015
IN THE COURT OF LXIII ADDL., CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY.
DATED THIS THE 4th DAY OF AUGUST 2015.
PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
Sessions Case No.831 of 2012
COMPLAINANT : State by Magadi Road Police Station,
Bangalore.
( By Public Prosecutor )
/Vs/
ACCUSED : 2. Kiran Kumar.S @ Kiru @ Chainaa,
S/o Sampath Kumar,
Aged 22 years,
R/at Next to BJP Chandra House,
Mallige Tota, Cholurupalya,
Magadi Road, Bangalore - 23.
3. Prashanth @ Avali, S/o Raju,
Aged 24 years,
R/at Opp. Milk Gowramma's House,
Cholurupalya, Magadi Road,
Bangalore - 23.
4. Santhosh @ Santu @ Major,
S/o Hemanth Kumar,
Aged 21 years,
R/at No.7, 7th Cross, Channel Road,
Cholurupalya, Bangalore - 23.
2 SC.831 of 2012
5. Rohith.M., S/o Muruli Mohan,
Aged 24 years,
R/at No.47, 1st Cross, Near Ganesha
Temple, Cholurupalya,
Bangalore - 23.
6. Manja @ Matti Manja @ Manjunatha,
S/o Anjanappa,
Aged 22 years,
R/at No.65, 6th Main, Cholurupalya,
Bangalore - 23.
7. Praveen Kumar @ Wisper,
S/o Kumar,
Aged 21 years,
R/at No.18, 1st Cross, Cholurupalya,
Bangalore - 23.
(Accused no.4 and 6 are in JC)
( Case against Accused no.1 is abetted
and Accused no.8 and 9 not sent up for
trail)
1. Date of commission of offence : 16.10.2011
2. Date of report of offence : 17.10.2011
3. Arrest of Accused No.2, 3, 4, 5, 6 & 7 : 17.10.2011
4. Name of the complainant : Sri.Vishwa
5. Date of commencement of
recording the evidence : 18.01.2013
6. Date of closing of evidence : 28.07.2015
7. Offences complained of : U/Secs., 120(B), 143,
147, 148, 341, 323, 324,
307 r/w 149 of IPC.
8. Opinion of the Judge : Accused 2 to 7 found
not guilty.
3 SC.831 of 2012
JUDGMENT
1. Police Sub-Inspector of Magadi Road Police Station, filed this charge sheet against accused No.1 to 7 alleging that they have committed the offences punishable U/Sec.120(B), 143, 147, 148, 341, 323, 324, 307 r/w 149 of IPC.
2. Brief facts of the case of the prosecution is that, on 16.10.2011 at about 01.10 a.m. complainant Vishva filed complaint before the Magadi road police stating that he working as a supplier in Rummy club for the last 7 months. As usual on 16.10.2011 when he was working as usual customer of the culb Dhanajaya came to the culb for playing at 11.30 am and remained in the club up to 10.00 pm. Dhananjaya ought to have paid Rs.1,000/- to the complainant towards table charges. Dhananjaya asked the complainant to have meals with them then he will pay the amount. To have the meals complainant came with Dhananjaya to All Taj hotel situated at Vidhyaranya Nagar Masjad main road and obtained 4 SC.831 of 2012 parcel and came forward. Dhananjaya halted near ABCD compound. Then complainant went to bring curd towards Bakery. At that time in Maruthi 800 red Car and in Pulser Black Bike persons wrongfully restrained the Dhananjaya from moving further. 4 persons got down from the Maruthi 800 car. They were having deadly weapons like chopper, hockey stick. They chased injured Dhananjay. Complainant also followed them. At Shantharam Kalyana Mantapa, 3rd Cross, accused persons assaulted Dhananjay on his head with chopper and hockey stick. They also assaulted on the back of Dhananjay. Dhananjay fallen down sustaining bleeding injuries. Injured was asserting that Naveen, Avali, Chain, Rohit don't assault me. He was also requesting Murthy anna to advice others not to assault. They ran away after assault. Then complainant admitted the injured to the hospital. Accordingly prayed the police to take action against them.
5 SC.831 of 2012
3. After receipt of the complaint P.S.I., Magadi Road police station registered a case against the accused persons in Cr.No.289/2011 for the offences punishable U/Secs.120(B), 143, 147, 148, 341, 323, 324, 307 r/w 149 IPC and forwarded the F.I.R. to the Court as well as to higher authorities. Then conducted detailed investigation, recorded the statement of injured persons and other witnesses. After obtaining injury certificate and completion of the investigation found that there is a prima facie case made out against the accused persons for the alleged offences. Accordingly filed charge sheet against the accused persons for the offence punishable U/SEcs.143, 147, 148, 323, 324, 120(B), 307 r/w 149 of IPC.
4. After receipt of the charge sheet, III A.C.M.M., Bangalore, registered case in C.C.No.8639/2012 against accused No.1 to 7. Accused No.2 to 7 were released on bail. Case against Accused no.1 is abetted as he is dead. After furnishing the copies of charge sheet III A.C.M.M., Bangalore committed the case of 6 SC.831 of 2012 accused no.2 to 7 to the Court of Sessions for trial as the offence U/Sec.307 is exclusively triable by the Court of Sessions.
5. After receipt of the case papers from III A.C.M.M., Bangalore, Hon'ble Prl.Sessions Judge, Bangalore registered the case against the accused No.2 to 7 in SC.No.831/2012 and the same is made over to this court for disposal in accordance with law.
6. After receipt of the case, this court issued summons to accused No.2 to 7 who appeared before the court and released on bail. Latter accused no.4 and 6 secured before the court under Body warrant.
7. After hearing accused No.2 to 7 and the prosecution, Charge framed, read over and explained to the accused No.2 to 7 in the language known to them. After knowing the same, accused No.2 to 7 not pleaded guilty and claims to be tried.
8. In order to prove the case, prosecution examined in all PWs.1 to 6 and got exhibited Ex.P.1 to P.6 documents. Inspite of several NBW issued to CWs.1, 7 SC.831 of 2012 3, 4, 6, 8, 9, 11, 13, 14, 16 to 19 they returned unexecuted without any proper reasons. In this case complainant is not examined before this Court. Injured, eye-witness, panchas have turned hostile and not supported the case of the prosecution. Hence by rejecting the prayer of the prosecution to reissue NBW to CWs.1, 3, 4, 6, 8, 9, 11, 13, 14, 16 to 19 taken prosecution evidence as closed.
9. After closure of the prosecution evidence, 313 Cr.P.C., statement of accused No.2 to 7 was recorded. Accused No.2 to 7 denied the incriminating evidence appearing against them in the prosecution case and submits no defense evidence.
10. Heard the arguments and perused the records before the court.
11. In this case injured turned hostile, complainant is not examined, eye witness and panchas also turned hostile, hence the only point that arise for consideration is as under :
8 SC.831 of 2012 Point No.1: Whether the prosecution proves beyond all reasonable doubt that, on 16.10.2011 at about 10.15 p.m. accused persons together committed criminal conspiracy and being members of unlawful assembly, in furtherance of their common object committed the offence of rioting with deadly weapons in their hands, with an intention of committing the murder of CW2 Dhananjay, picked up quarrel with the injured Dhananjay at Mysore Road, Jai Maruthi Recreation Club by coming in Maruthi car and Bike, assaulted the said Dhananjay with chopper, clubs, hockey sticks on all parts of the body and ran away, which resulted in bleeding injuries to the injured and thereby committed the offences punishable U/Secs.120(B) 147, 148, 341, 307 r/w 149 of IPC ?
Point No.2: What order ?
12. My findings on the above points are as under:
Point No.1: In the Negative, Point No.2: As per final order for the following:
REASONS
13. Point No.1: It is the specific case of the prosecution that, on 16.10.2011 at about 10.15 p.m. accused persons being members unlawful assembly, in furtherance of their common object committed the offence of rioting with deadly weapons in their hands, 9 SC.831 of 2012 made an attempt to murder of CW2 Dhananjay picked up quarrel with the injured Dhananjay at Mysore Road, Jai Maruthi Recreation Club by coming in Maruthi car and bike assaulted the said Dhananjay with chopper, hockey sticks on all parts of the body and ran away, which resulted in bleeding injuries to the injured and thereby committed the offences punishable U/Secs.120(B) 147 148, 341, 307 r/w 149 of IPC.
14. It is well settled principle that the prosecution has to prove its case against accused No.2 to 7 beyond all reasonable doubt. Whenever doubt arises in the mind of the court about the case of the prosecution, then the accused persons are very well entitled for claiming the benefit of the doubt in their favour. It is also well settled principle that the accused persons are presumed the be innocent till the guilt against them is proved. Let us see whether the prosecution is successful in proving its case?
10 SC.831 of 2012
15. In this case injured is examined as PW.2. Doctor who treated the injured is examined as PW1. Eye witness is examined as PW.3. Recovery pancha is examined as PW.4. Hear say witness is examined as PW.5. PW.6 is the police official who arrested the accused No.2 to
7. Ex.P.1 is the injury certificate of injured, Ex.P.2 is statement of PW.2 before the police, Ex.P.3 is the statement of PW.3 before the police, Ex.P.4 is recovery mahazar, Ex.P.5 is statement of PW.4 before the police and Ex.P.6 is statement of PW.5 before the police.
16. In this case it is specifically alleged by the prosecution that, all the accused persons by committing criminal conspiracy assaulted the injured with chopper and hockey sticks. Injured is examined before the Court as PW.2. He turned hostile and not supported the case of the prosecution. PW.3 is the eye witness. He also turned hostile and not supported the case of the prosecution. PW.4 is recovery pancha, he also turned hostile and not supported the case of the prosecution.
11 SC.831 of 2012 PW.4 is the hear-say witness. He also turned hostile and not supported the case of the prosecution. Even though prosecution treated PW.2 to PW.5 as hostile and cross examined them before the Court, absolutely no material is produced before the Court to connect the guilt of the accused persons. Prosecution failed to show before the Court that PW.2 and PW.3 given statement as per Ex.P.2 and P.3 and PW.4 and PW.5 given statement as per Ex.P.5 and P.6. Evidence remained before the Court is PW.1 and PW.6. If at all accused persons assaulted the injured he could have identified the accused persons. But it is so in this case. PW.1 is the doctor who treated the injured and given report. PW.6 is the police official who arrested the accused persons and produced before the Investigating Officer. Their evidence is not helpful to the prosecution.
17. Accused No.4 and 6 are in judicial custody. Charge is framed in the year 2012. Inspite of sufficient opportunity given to the prosecution and inspite of 12 SC.831 of 2012 sufficient NBW given to the prosecution witnesses CWs.1, 3, 4, 6, 8, 9, 11, 13, 14, 16 to 19 the police failed to execute the same and produce them before the Court to lead evidence on behalf of prosecution in support of the case of the prosecution. The some of the NBW are returned unexecuted as witnesses are not residing in the given address. Since accused No.4 and 6 are in judicial custody and matter is pending from the year 2012, I am of the opinion that when injured and eye witness turned hostile and recovery pancha turned hostile, then there is no meaning in issuing the NBW to the said witnesses and purpose of prosecution will not serve by examining the said witnesses. Even for the sake of arguments if it is presumed that said complainant, eye witnesses are produced and examined before the Court, it will not help the prosecution because the very injured turned hostile and not supported the case of the prosecution and injured fails to identify the accused persons before the Court. Accordingly prayer of the 13 SC.831 of 2012 prosecution to re-issue NBW to CWs.1, 3, 4, 6, 8, 9, 11, 13, 14, 16 to 19 is rejected. Evidence before the Court is not sufficient to connect the guilt of the accused persons. Doubt arises in the mind of the Court about the case of the prosecution. When doubt arises about the case of the prosecution, accused persons are very well entitled to claim the said benefit of doubt in their favour. Accordingly by awarding benefit of doubt in favour of the accused persons, this Court comes to the conclusion that prosecution failed to prove its case as alleged against accused persons. Hence, I answer point No.1 in the Negative.
18. Point No.2: In view of the discussion made above and the findings given on point Nos.1, I proceed to pass the following:
ORDER
1. Acting U/sec.235 (1) Cr.P.C, accused No.2 to 7 are acquitted for the offences punishable U/Secs.120(B), 148, 341, 307 r/w 149 IPC.2. Bail-bonds of Accused No.2, 3, 5 and 7
and that of their sureties stand cancelled. Accused No.4 and 6 are set at liberty.
14 SC.831 of 2012 Issue intimation to J/A to release A-4 & A- 6 from this case if they are not required in any other case.
3. Properties shown in the charge sheet are ordered destroyed after the expiry of the appeal period as they are wrothless.
4. Office is directed to obtain bonds of accused No.2 to 7 as required U/sec.
437(A) of Cr.P.C.
(Dictated to the Stenographer, the transcript revised and then pronounced by me in open court on this the 4th day of August 2015).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore City.
ANNEXURE.
1. List of witnesses examined for the prosecution:
PW.1 - Dr. Kiran, S/o Jayaram, 47 yrs, PW.2 - Dhananjay, S/o Jayaraj, 26 yrs, PW.3 - Jameel Pasha, S/o Bhasheer, 47 yrs, PW.4 - Bhavish, S/o Govinda, 28 yrs, PW.5 - Vinay, S/o Shivakumar, 28 yrs, PW.6 - Srinivasa Rao, S/o B.Lakshman Rao, 59 yrs, 15 SC.831 of 2012
2. List of witnesses examined for the accused:
- NIL-
3. List of documents marked for the prosecution:
Ex.P.1 - Wound Certificate
Ex.P.1(a) - Signature of PW.1
Ex.P.2 - Statement of PW.2
Ex.P.2(a) - Signature of PW.2
Ex.P.3 - Statement of PW.3
Ex.P.4 - Mahazar
Ex.P.4(a) - Signature of PW.4
Ex.P.5 - Statement of PW.4
Ex.P.6 - Statement of PW.5
4. List of documents marked for the Accused:
- NIL -
5. Material object marked in this case:
- NIL -
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore City. 16 SC.831 of 2012 04.08.2015:
State by: P.P, Accd No.4, 6 : J.C. Accd No.2, 3, 5, 7 : Bail, For judgment.Case called out. Accused No.4 and 6 produced from J.C. Accused No.2, 3, 5
and 7 present before the Court. Judgment passed and pronounced in open court. Accused No.2 to 7 are acquitted for the offences punishable U/Secs.120(B), 148, 341, 307 r/w 149 IPC vide separate judgment. Operative portion of the judgment is as under:
1. Acting U/sec.235 (1) Cr.P.C, accused No.2 to 7 are acquitted for the offences punishable U/Secs.120(B), 148, 341, 307 r/w 149 IPC.2. Bail-bonds of Accused No.2, 3, 5 and 7
and that of their sureties stand cancelled. Accused No.4 and 6 are set at liberty.
3. Properties shown in the charge sheet are ordered destroyed after the expiry of the appeal period as they are worthless.
17 SC.831 of 2012
4. Office is directed to obtain bonds of accused No.2 to 7 as required U/sec.
437(A) of Cr.P.C.
LXIII A.C.C. & S. Judge, Bangalore City.