Bangalore District Court
Mehaboob vs Prema Ram Modi on 24 January, 2025
KABC030098662022
Presented on : 07-02-2022
Registered on : 07-02-2022
Decided on : 24-01-2025
Duration : 2 years, 11 months, 17 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 24th Day of January, 2025
C.C. No.2675/2022
State by Gangammanagudi Police Station,
Bengaluru. ... Complainant
(Represented by Sri. Vishwanath, Senior APP)
Versus
1. Sri Premram Modi,
Aged about 36 years,
S/o Sri Channa Rammi Modiji Modi ,
2. Sri Suresh Kumar,
Aged about 29 years,
S/o Sri Chamana Ram,
KABC030098662022 CC No.2675/2022
Both are R/at No.281/1,
PKR Building, Kalanagar,
Kammagondanahalli,
Bengaluru. ... Accused
(Represented By Smt. S. Geethaanjali Advocate)
1. Date of commission of 16-10-2021
offence
2. Name of Complainant Sri Mehaboob
3. Offences complained Under Section 341, 323,
of 324, 326 read with
Section 34 of IPC
4. Charge Pleaded not guilty
5. Final Order Acquitted
6. Date of order 24-01-2025
JUDGMENT
The Police Sub-Inspector of Gangammanagudi Police Station submitted charge sheet against accused No.1 and 2 for the offences punishable under Section 341, 323, 324, 326 read with Section 34 of Indian Penal Code.
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2. Prosecution Case: On 16-10-2021 at 12.30 p.m. when CW1 Sri Mehaboob purchased fabric items from the shop of accused situated at Lakshmipura main road, near KEB, within the limits of Gangammanagdui Police Station however he refused to pay extra price charged by the accused after preparing the bill of such articles, for which accused persons with common intention has wrongfully restrained him, beaten him with hands and accused No.1 hit on CW1's face, eyes and nose with iron ball and caused grievous bleeding injuries.
3. First Information Report: On the basis of first information lodged by CW1 Sri Mehaboob, CW8/PW6 Sri Basawantraya, PSI of Gangammanagudi Police Station registered a Crime No.90/2021 against the accused for the offences punishable under Section 341, 324 read with Sec.34 of IPC, prepared FIR as per Ex.P7, sent the same to the Court and to his superior officers, conducted mahazar on 20-10-2021 in the presence of CW2 and CW3 from 9 am to 9.45 a.m. as per Ex.P2 and seized one iron rod as per MO1.
4. Investigation: Thereafter CW8/PW6 recorded the statement of requisite witnesses, collected the wound certificate as per Ex.P6 and collected the medical records of CW1 as per Ex.P8 and submitted 3 KABC030098662022 CC No.2675/2022 charge sheet against accused for the offences punishable u/Sec.341, 323, 324, 326 read with Sec.34 of IPC.
5. The accused No.1 and 2 were enlarged on bail by the order dated 18-04-2022.
6. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
7. Copies of prosecution paper as required U/Sec.207 of Cr.P.C have been furnished to the accused No.1 and 2.
8. Charge: After hearing learned Sr.APP and counsel for accused No.1 and 2, the charge for the offences punishable U/Sec. 341, 323, 324, 326 R/W Sec.34 of Indian Penal Code, has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 8 witnesses however examined 6 witnesses and exhibited 8 documents and closed their side. Despite execution of proclamation, the presence of CW3 and CW4 were not 4 KABC030098662022 CC No.2675/2022 secured and hence the examination of CW3 and CW4 dropped out by the order dated 20-01-2024.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused were examined as per section 313 of Cr.P.C wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 16-10-2021 at 12.30 p.m. at the shop of accused situated at Lakshmipura main road, near KEB, within the limits of Gangammanagudi Police Station the accused No.1 and 2 with common intention wrongfully restrained CW1 Sri 5 KABC030098662022 CC No.2675/2022 Mehaboob thereby resulted in commission of an offence punishable Section 341 R/w Sec.34 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on the above date, place and time, accused No.1 and 2 in furtherance common intention has voluntarily beaten CW1 with hands and caused simple hurt thereby committed an offence punishable U/Sec.323 R/W Sec.34 of IPC?
3. Whether the prosecution further proved beyond all reasonable doubt that on the above said date, time and place in furtherance of common intention accused No.1 had voluntarily hit on CW1's face, eyes and nose with iron ball thereby committed an offence punishable U/Sec.324 read with Sec.34 of IPC?
6KABC030098662022 CC No.2675/2022
4. Whether the prosecution further proved beyond all reasonable doubt that on the above said date, time and place in furtherance of common intention accused No.1 had voluntarily hit on CW1's face, eyes and nose with iron ball and caused grievous bleeding injuries and thereby committed an offence punishable U/Sec.
326 read with Sec.34 of IPC?
5. What order?
13. The court's findings on the above points are as under:
Point No.1-4 : In the Negative Point No.5 : As per final order REASONS
14. Point No.1 to 4: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for 7 KABC030098662022 CC No.2675/2022 consideration in paragraph 12 of this judgment, the prosecution examined witnesses which are as follows i. CW1 by name Sri Mehaboob, being Informant examined as PW1 deposed that, he has furniture shop and accused No.1 running a hardware shop by name SS. Last year on 16 th October, he went to shop of accused for purchasing some bolts, cups and balls, accused mentioned excess amount of Rs.450/- for purchase of aforesaid articles. When he bargained with accused, as he had purchased same materials for Rs.250/ about one month back, for which, both the accused called him inside the shop and servant of accused No.1 held CW1's hands and accused No. 1 and 2 beaten on his face with SS Iron Ball and succumbed to bleeding injuries on his eye and nose. Immediately, he went to Police Station however the police sent him for treatment to Yelahanka Government Hospital. Later he had taken treatment in other 2 to 3 hospitals, after 3 days, he lodged complaint as per Ex.P1 and police conducted spot mahazar as per Ex.P2, CW2 and CW3 signed said spot mahazar with him. He identified the photo of shop as per Ex.P3 and iron SS ball as MO1 which was seized at the time of spot mahazar. He identified his signatures as Ex.P1(a) and 2(a).
8KABC030098662022 CC No.2675/2022 ii. CW2 Sri Kalidas, mahazar witness examined as PW2 deposed that he identified his signature on Ex.P2 and he signed to the mahazar which was drawn by the police on 20-10-2021 and identified his signature thereon as Ex.P2(b).
iii. CW5 Sri Ravikumar Singh and CW6 Sri Vasavaraja examined as PW3 and PW4 respectively pleaded ignorance about the case of prosecution and they have not given any statement before the police. Their denial statements given before the police are marked as per Ex.P4 and Ex.P5.
iv. CW7 Dr.Premananda,B.H., examined as PW5 deposed that on 16-10-2021 at 2.35 pm, CW1 came with history of assault by his son-in-law. After examination of CW1, he found 1. ಕಣ್ಣಿನ ಸುತ್ತಮುತ ಊತ, 2. ಮೂಗಿನ ಒಳಗಡೆ ರಕ್ತಹೆಪ್ಟುಕಟ್ಟಿದ್ದು, 3. ಎರಡು ಕಣ್ಣುಗಳ ಸುತ್ತಮುತ್ತ ಕಪ್ಪಾಗಿ ಊತ injuries, hence he sent him to ENT doctor at Victoria hospital for further treatment and obtained report. As per his opinion, 1st and 2nd injuries are simple in nature and 3rd is grievous in nature and hence, he issued wound certificate as per Ex.P6 and stated that if a person hits with an iron rod, the injuries mentioned in Ex.P6 may occur. He identified his signature as Ex.P6(a).
9KABC030098662022 CC No.2675/2022 v. CW8 by name Sri Basavanthray, the then PSI of Gangmmanagudi Police Station examined as PW6 deposed that on 19-10-2021 on the basis of complaint of CW1, he registered FIR as per Ex.P7. On 20-10-2021, he conducted spot mahazar as per Ex.P2 at the shop of accused in the presence of CW2 and CW3 and seized one iron rod and recorded the statement of witnesses and he collected wound certificate of CW1 from Yelahanka Government Hospital as per Ex.P6 and collected the medical records of CW1 and submitted chare sheet against accused. Further he identified medical records as per Ex.P8 and iron rod as per MO1 and identified his signatures as Ex.P1(b), 6(b), 7(a) and 8(a).
15. Defence of accused persons: The following defences were culled out from cross examination of prosecution witnesses namely i. Except PW1, none of public witnessed the alleged quarrel as it was taken place in the public place.
ii. PW1 refused to pay the bills after purchase of the fabric materials.
iii. There is no clarity as to the date of alleged incident.
10KABC030098662022 CC No.2675/2022
16. It is relevant to rely upon decision in the case of High Court of Karnataka Vs Syed Mohammed Ibrahim reported in 2015(1) KCCR 513(DB) wherein it was held that The onus of proving everything essential to the establishment of charges against the accused persons lies on prosecution as every man is presumed to be innocent. The prosecution must stand or fall on its own legs and cannot derive any strength from the weakness of the defense. The weakness of the defense can only be called as additional link to aid the prosecution. It is not the law that the same could be cured or supplied by a false defence or a plea which is not accepted by a court. The accused merely has to cast a reasonable doubt in the prosecution case to be acquitted. The prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as, it does not discharge its initial burden of proving its case beyond all reasonable doubt or any evidence in defence is produced, the silence of accused being of no consequence. In criminal cases, 11 KABC030098662022 CC No.2675/2022 the main burden i.e., of proving the guilt of the accused beyond reasonable doubt always rests on the prosecution and never shifts even though any statute provides for drawing of some presumption against the accused in certain cases. The burden of proving guilty intention or knowledge is on the prosecution and the burden is not on the accused of showing absence of knowledge. It is the duty of the public prosecutor to call every witness who can throw any light on the enquiry whether they support the prosecution theory or defense theory.
Thus, the burden of proving essentiality to the establishment of charges is upon the prosecution against the accused.
17. As per section 339 of Indian Penal Code, wrongful restraint is defined as "Whoever voluntarily obstructs any person to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain 12 KABC030098662022 CC No.2675/2022 that person." in the Indian Penal Code.
Whereas section 341 of Indian Penal Code provides for punishment for wrongful restraint which is as follows;
'Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Thus, the main reason behind the formation of section 341 IPC and section 339 is to ensure the freedom of individuals and to protect them against wrongful restraint in their movement.
18. To comprise the wrongdoing of carrying out unjust restrictions, the individual who was denied their freedom should confront a deterrent as per section 341 IPC and section 339 IPC.
Other than that, the individual who confronted the block should feel that they are denied or not given admittance to continue towards the heading they wanted to continue 13 KABC030098662022 CC No.2675/2022 in any case as per section 341 IPC and section 339 IPC.
The last and principal part, which is expected for it to be known as wrongdoing, is that the casualty should reserve the option to continue towards the ideal heading in any case as per section 341 IPC and section 339 IPC.
19. Section 325 deals with punishment for voluntarily causing grievous hurt.
20. Section 326 deals with offence of voluntarily causing hurt by dangerous weapons or means.
Section 326 provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to 14 KABC030098662022 CC No.2675/2022 inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and also with a liability to pay a fine.
Sections 325 and 326 of IPC like the two Sections immediately preceding, provide the ordinary punishment and punishment under certain aggravating circumstances of the offences mentioned thereunder. The two latter Sections apply to the case of causing "grievous hurt" and the immediately preceding two Sections to the case of 'hurt'.
21. "Grievous hurt" has been defined in Section 320 IPC, which read as follows: "
320 Grievous Hurt - The following kinds of hurt only are designated as "grievous"-
First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear.
15
KABC030098662022 CC No.2675/2022
Fourthly - Privation of any
member or joint.
Fifthly - Destruction or permanent impairing of the powers of any members or joint.
Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must 6 be strictly proved, and the eighth clause is no exception to the 16 KABC030098662022 CC No.2675/2022 general rule of law that a penal statute must be construed strictly.
22. The expression "any instrument which, used as a weapon of offence, is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made. The heading of the Section provides some insight into the factors to be considered. The essential ingredients to attract Section 326 are : (1) voluntarily causing a hurt; (2) hurt caused must be a grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. It was held by Hon'ble Apex Court in the case of State of U.P. v. Indrajeet Alias Sukhatha (2000(7) SCC 249) that there is no such thing as a regular or earmarked weapon for committing murder or for that matter a hurt. Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. At this juncture, it is relevant to note that in some provisions e.g. Sections 324 and 326 expression "dangerous weapon" is used. In some other more serious offences the expression used is "deadly weapon" (e.g. Sections 397 and 398). The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light 17 KABC030098662022 CC No.2675/2022 on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case Section 325 or Section 326 would be applicable. The above preposition was highlighted in the case of Mathai v. State of Kerala (2005 (2) JT
365).
23. With the background of Section 341, 324, 326 of IPC, the present case is taken up. It is the case of prosecution that on 16/10/2021 at 12.30 p.m. when PW1 Sri Mehaboob purchased fabric items from the shop of accused situated at Lakshmipura main road, near KEB, within the limits of Gangammanagdui Police Station and obstructed/restrained him from moving further any direction.
24. In this regard, PW1 deposed that Ex.P1 was typed in the Police Station. I do not know who typed the same. It is true to suggest that I do not know read to and write Kannada language. It is true to suggest that, I do not know the contents of Ex.P1. xxx as on the date of incident, I had purchase some materials from Accused No. 18 KABC030098662022 CC No.2675/2022 1's shop. I have not given any bills to IO about the purchase of the goods. There was no impediment to produce the said bills before the IO. Xxxx I have not furnished about the bill of Rs. 250/- to IO.
In my complaint, I have mentioned that the accused forcibly let me to sit in the place. Xxxx It is true to suggest that there are many hospital near by the place of incident. Xxx The distance from Vidhyaranayapura and Yelahanka is 7 to 8 kms.
There was no impediment to take treatment nearby hospital but I went to government hospital. It is true to suggest that before the doctor, I told that on 15/10/2021 the accused have abused me.
Xxxx It is true to suggest that, for the first time in court, after the incident I had been to hospital. I do not know the exact date when the police visited the spot. I do not know who has handed over the MO1 to Police. It is true to suggest that I do not know the contents of 19 KABC030098662022 CC No.2675/2022 Ex.P2. I do not know who all have signed on Ex.P2.
Thus, the Ex.P6 vide wound certificate appears that the alleged incident had taken place on 15/10/2021 at 12.30 pm but the PW1 had stated in the complaint that the alleged incident was taken place on 16/10/2021 at 12.30 pm. If the alleged incident was taken place on 15/10/2021, why the PW1 did not take the treatment immediately and more so the PW1 did not mention the name of persons who has assaulted him and with what he was assaulted before the doctor who has rendered the treatment. More so over the prime evidence for Section 326 of IPC was not met out as no permanent damage was caused to the PW1 except the swelling around the eyes. The treatment rendered by the Victoria Hospital, Bangalore was not produced by the prosecution for evidence on record to corroborate the grievous or severity of injuries.
25. Added to which, the alleged incident place near to the Abbigere Police Station, what prevented the PW1 to approach the Police Station immediately on 15/10/2021. The distance between the alleged incident place and the complainant police was hardly 500 meters, he could have immediately lodged the complaint.
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26. If the PW1 had bleeding injuries, why he did not go to the nearby hospital for taking the first aid treatment, then, why had to wait till 16/10/2021 for almost 24 hours for taking the treatment.
27. PW6-IO did not secure the particulars of GPRS of PW1 and the accused persons for either on 15/101/2021 or on 16/10/2021 to corroborate the alleged incident.
28. In the instant case, the weapon is iron ball but the description of iron ball was not mentioned in the Ex. P. 2 and more so the said iron ball was not given by the PW1 to the IO-PW6.
29. IO -PW6 did not collect any evidence as to the MO1 belongs to the shop of Accused No. 1.
30. IO-PW6 did not collect any opinion from the doctor-PW5 by showing the MO1 that alleged injuries are possible to occur if a person assaults with the MO1 as the MO1 was very light and the MO1 was not even the iron particles as it was of steel one and was like a curtain rod clamp.
21KABC030098662022 CC No.2675/2022
31. Eye witnesses namely PW3 Sri Ravikumar Singh and PW4 Sri Basavaraju did not support the prosecution case.
32. Mahazar witness namely PW2 did not support the mahazar and more particularly deposed that he signed to the Ex.P2 mahazar in the police station at the time of lodging the complaint.
33. PW1 being informant cum victim pleaded ignorance about the contents of Ex.P1-complaint and Ex.P2 mahazar. Without any eye witnesses to the alleged incident, the court cannot accept that the accused No. 1 and 2 obstructed the movement of PW1 from proceeding further and the delay in lodging the complaint and delay in taking the treatment raises the doubt about the alleged incident and hence this court had to negate the prosecution case as no such incident has taken place. Accordingly, THIS COURT ANSWERS THE POINT NO.1 TO 4 IN THE NEGATIVE.
34. Point No.5:- In view of the above findings and reasons given on point No.1 to 4 this Court proceeds to pass the following:
22KABC030098662022 CC No.2675/2022 ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Sec.341, 323, 324, 326 read with Section 34 of IPC.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) After the expiry of appeal period, MO1 being worthless shall be destroyed.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me in my laptop, then the judgment pronounced by me in the open court, on this the 24 th day of January, 2025) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
23KABC030098662022 CC No.2675/2022 ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Mehaboob PW2 : Sri Kalidasa PW3 : Sri Ravikumar Singh PW4 : Sri Basavaraja PW5 : Dr. Sri Premananda.B.H. PW6 : Sri. Basavnatha Roy
Documents marked on behalf of the prosecution:
Ex.P1 : Complaint Ex.P2 : Spot Mahazar Ex.P3 : Photo Ex.P4 : Statement of PW3 Ex.P5 : Statement of PW4 Ex.P6 : Wound Certificate Ex.P7 : FIR Ex.P8 : Copy of medical report
Material Objects marked on behalf of the prosecution: Nil Witnesses examined for the defence:Nil Documents marked on behalf of the defence:Nil VIII Addl. Chief Judicial Magistrate, Bengaluru City.
24KABC030098662022 CC No.2675/2022 24-01-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offences punishable under Sec.341, 323, 324, 326 read with Section 34 of IPC.
(ii) Accused are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) After the expiry of appeal period, MO1 being worthless shall be destroyed.
(v) Ordered accordingly.
VIII ACJM, B'luru City 25