Bangalore District Court
Were Pulling Each Other. But vs Tried To Assault Pw on 30 June, 2020
1 cc 19577 of 2017
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 30TH DAY OF JUNE 2020
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
XLI (41ST) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 19577 OF 2017
BETWEEN
1. STATE represented by
Bellanduru Police. ....COMPLAINANT
AND
1. VENKATESH A.K,
S/o.Bairappa,
Aged about 40 years,
Boganahalli,
Varturu Hobli,
Bengaluru. ....ACCUSED
(Represented by Sri.S.G.Parthasarathi, Advocate)
BELLANDURU POLICE HAVE CHARGE SHEETED THE
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 447, 341, 323, 354, 504, 506 OF IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING...
2 cc 19577 of 2017
Offences alleged u/s : 504,354,323,506 of IPC
Charge sheet filed on : 21-06-2017
Trial commenced on : 02-07-2018
Trial completed on : 01-02-2020
Judgment date : 30-6-2020
Total duration : Days-Months- Years
09 00 03
JUDGMENT
1. Case of the prosecution is as under;- It is alleged that due to long standing enmity, although the accused being a neighbor of PW.1, on 07/06/2017, at about 4.00 p.m, within the limits of aforementioned police station particularly at Boganahalli village, when the first informant-PW.1 was standing in front of his house, the accused gone near her house and started scolding her {PW.1} using filthy language. She questioned his act. But all of a sudden, he held her right hand, dragged her and slapped her. She started shouting therein. Thereafter, PW.2 rushed to the spot and tried to save his wife-PW.1. But accused took a stone, threw it towards them. They managed to get escaped being 3 cc 19577 of 2017 hit by it. The accused left the spot asserting that, he will not leave them and would teach them a lesson etc. Thereafter the first information to the police and a case came to be registered against the accused for the offences aforementioned.
2. The investigation officer visited the spot, drew the mahazar and seized the articles and recorded the statements of the witnesses. Upon completion of his investigation, he charge sheeted the accused for the offences aforementioned.
3. This court took the cognizance of the offences punishable under sections 323, 354, 504, 506 of IPC. As per the directions of the court, CC.No.19577 of 2017 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
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4. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which he claims to be conversant with. But he did not plead guilty and he claimed then, to be tried. Therefore, this court issued summons to the witnesses.
5. To prove the case, the prosecution has examined as many as 09 witnesses (PW.1 to 9) and further relied upon Ex.P.1 to 4. After completion of the evidence of the prosecution side, the statement of the accused U/s.313 of Cr.P.C came be recorded. Wherein, the accused denied the evidence of the prosecution. He has chosen to adduce evidence as well. He deposed before this court as DW.1 and also has relied upon as many as 07 documents (Ex.D.1 to 7). 5 cc 19577 of 2017
6. Taking into consideration the submissions made in the court then by learned counsel appearing for the accused and the accused, the court posted this matter for arguments.
7. Heard the learned Assistant Public Prosecutor and also heard the leaned counsel for the accused.
8. It is apt at this juncture to note that, although the IO has submitted the investigation report opining that the accused has committed all the aforementioned offences, still, this court while framing the charge against the accused, considered relevant factors which are necessary to be considered to proceed further, and has charged the accused for the offences punishable U/s.504, 323, 354, 506 of IPC only opining that sufficient materials are there to frame charge against accused for the said offences.
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9. Following points arise for consideration;-
1. Whether the prosecution proves beyond reasonable doubt that, on 07/06/2017, at about 4.00 p.m., when the PW.1 was standing in front of her house, the accused being her neighborer, with an intention to provoke the breach of peace has insulted the PW.1 by scolding her using filthy language and therefore he has committed an offence punishable U/s.504 of IPC ?
2. Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place the accused while scolding the PW.1 using filhty language, PW.1 questioned him, but, all of a sudden accused held her right hand and dragged her, slapper her with an intention to assualt and with an intention to use a criminal force against her to outrage her modesty and therefore he has committed an offence punishable U/s.354 of IPC ?
3. Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place the accused slapped PW.1 and voluntarily caused hurt and therefore he has committed an offence punishable U/s.323 of IPC ?
7 cc 19577 of 2017
4. Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place the accused has committed an offence punishable U/s.506 of IPC by threatening both PW.1 and 2 with dire consequences as to their life and thereby he has committed an offence called criminal intimidation ?
5. what orders ?
10. Above points are answered as under;-
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Affirmative Point No.4: In the Negative Point No.5: As per final orders for the following;
REASONS The burden is upon the prosecution to prove beyond reasonable doubt the offences alleged against the accused.
8 cc 19577 of 2017 The points mentioned herein above are hereby taken up for discussion one by one.
11. Point No.1;- The prosecution as aforesaid has relied upon the evidence of PW.1 to 9 and also has relied upon the documentary evidence adduced vide Ex.P.1 to 4. On a careful reading of the deposition of PW.1 it is clear that, the first informant namely Smt.Laxmamma has deposed in this court as PW.1. She deposed that there is a dispute between her family and the accused and it is civil in nature.
12. She deposed further that on 07/06/2017 when she was at her home at about 4.00 p.m, the accused reached near her house and he started scolding her. He abused her in filthy language and he was shouting that, he will spoil her family etc. She questioned him as to why was he doing said acts on her, but, the accused slapped her, dragged her and pulled her holding her right hand. Further she has 9 cc 19577 of 2017 deposed that, when PW.2 tried to pacify the quarrel, he took a stone and has thrown it towards them (PW.1 and 2), but they managed to get escaped being hit by it.
13. Detailed cross-examination came to be conducted against her by the counsel appearing for the accused. During the cross-examination many questions regarding time of complaint, time at which she reached police station everything came to be asked together with the questions as to celebrations suggested to have been made with respect to Kempammadevi temple and on naming ceremony of the daughter of accused. She has pleaded ignorance in respect of the suggestion regarding exchange of words allegedly took place between one Aswathnarayana the brother-in-law of PW.1 and the wife of the accused. Further she pleaded her ignorance that, whether the accused 10 cc 19577 of 2017 had been near the house of her brother-in-law to enquire regarding the lighting post allegedly placed in the street with respect to the said temple.
14. She further denied a suggestion to the effect that during the said time, together with her husband and children she was present at the spot. She further denied the suggestion that, she had heard then the accused telling, he would meet said Aswathnarayana on 07/06/2017. She further denied the suggestion that, her husband abused the accused and misbehaved with him. She further denied the suggestion that, when her husband was abusing him, she was standing next to accused. She further denied the suggestion that, accused questioned her husband regarding the said act. She denied the suggestion specifically that, her children video graphed the said incident.
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15. Further she admitted in her cross-examination that, she is aware of the fact that, the accused is an advocate. Her house is situated adjacent to the house of the elder brother of the accused. The accused has filed a civil case against her and against her family. She pleaded her ignorance with respect to survey number of the property regarding which the suits suggested to have been filed. She specifically denied the suggestion of the learned counsel appearing for the accused that, as a civil suit is pending, the present case has been filed etc.
16. It is one of the suggestions of the counsel appearing for accused that, she and her family members have been making many attempts to kill the accused and have threatened him as to his life. Therefore, the accused has registered a case against them in CC.No.16827/18. However she has admitted that, she is one of the accused persons in the said case. 12 cc 19577 of 2017 She pleaded ignorance in respect of a suggestion that on 09/06/2017, naming ceremony of the daughter of the accused was celebrated.
17. As could be seen from cross-examination of PW.1 further that she has answered to the question of learned counsel for the accused that she wrote the complaint. She denied the suggestion that, she had not been to police station to submit complaint and CW.2 and 3 took her signature on the complaint and submitted it to the police. She pleaded ignorance on the question whether it was suggested that, the accused had come to the house for naming ceremony of his daughter and to attend the function with respect to Kempammadevi temple.
18. She denied the suggestions that, CW.2 and 3 have quarreled with his wife and she deposed against the accused at the instigation of CW.2 and 3. But she 13 cc 19577 of 2017 pleaded her ignorance and went further to answer that, she does not know whether a civil case is pending with respect to their lands. Further she denied a suggestion that, the accused appeared against her in a case bearing its number o.s 7124/11. She further denied the suggestion that, on 07/01/2019 she together with her relatives assaulted the accused in front of Central collage. She however admitted that, a criminal case came to be registered and she has obtained bail orders from the court in respect of Cr.No.05/19.
19. As could be seen from deposition of PW.2-the husband of PW.1, he has deposed exactly similar to what has been deposed by his wife PW.1. As could be seen from his cross-examination, he has answered that PW.3 herein is his elder brother and a person namely Ashwathnarayana is his younger brother. He answered that one Narendra is his 14 cc 19577 of 2017 neighbor and denied the suggestion that the said Narendra is his tenant. He pleaded ignorance regarding naming ceremony suggested to have been celebrated by the accused in the said temple during its 12th Anniversary. He further pleaded ignorance as to the date of the Anniversary of the temple and also regarding the date of naming ceremony of the daughter of the accused.
20. He also denied the suggestion that, his children have videographed the function related to temple. Strangely he has answered by denying the suggestion of the learned counsel appearing for the accused that, the house of the accused is situated just opposite to his house.
21. Many other suggestions also have been put by the learned counsel appearing for the accused with respect to the alleged illicit affair of PW.1 with 15 cc 19577 of 2017 others etc and also regarding the alleged conspiracy of PW.2 and his brothers to abduct the wife of the accused. But those suggestions do not have any bearing and they do not help the court to ascertain whether the prosecution is successful in proving its case or to ascertain whether the accused is successful in establishing his defense.
22. Further the PW.2 denied the suggestion of the learned counsel appearing for the accused that only to trouble the accused in celebrating the naming ceremony of his daughter, this case has been filed. However, he has specifically answered that he is not cordial with accused. He denied the suggestion of the learned counsel for the accused that, as the accused did not conduct his civil case on his behalf, this false complaint has been filed. But he admitted that the accused has filed a complaint against him and seven others and the same is pending in the 16 cc 19577 of 2017 court. One more suggestion which came to be put by the learned counsel appearing for the accused on PW.2 also could be seen from his deposition that as the accused is conducting a case against PW.2, PW.3 and his other brothers, all of them are trying to kill him. Said suggestion came to be denied as false. However, he has strangely answered that the house of the accused is situated 100 mts away from his house.
23. PW.3 deposed before this court and he is none other than a witness with respect to the mahazar stated to have been drawn by I.O. During his examination in chief, he identified his signature forthcoming on Ex.P.2 and same came to be marked as Ex.P.2(b) and he has deposed that, on 08/06/2017 police had been to the house of PW.1 with respect to the present matter and invited him to the mahazar and obtained his signature at about 9.30 a.m. 17 cc 19577 of 2017
24. During his cross-examination, many questions came to be asked by the learned counsel appearing for the accused. He has answered that, he is acquainted with accused. PW.1 is the wife of his younger brother. Said Narendra is his tenant, Said Ashwathnarayana is his younger brother. He has seen Kempammadevi temple from outside. Police have not issued any notice inviting him to participate in the mahazar as a witness to it. However, he denied the specific suggestion that, he has affixed his signature on Ex.P.2 only in the police station and further denied the suggestions that as PW.1 is his sister-in-law, to help her, he has affixed his signature and as the accused refused to conduct their Civil dispute on their behalf, this complaint has been filed against him.
25. As could be seen from the record, PW.4 is an eye witness in this matter. He has deposed that, on 18 cc 19577 of 2017 07/06/2017 at about 4.30 p.m. he heard the noise near the house of PW.1 and after reaching the spot, he saw accused and the complainant being indulged, then, in pulling each other. Accused tried to assault PW.1. He joined others to pacify their quarrel and thereafter went home. The accused abused PW.1 using filthy language and put threat upon her. Police recorded her statement. He is a resident of Boganahalli. The house in which he stays therein, it belongs to Manjunath and he hails from Kolar District and he denied the suggestion that, he has obtained the loan from Lokesh who is a relative of the accused and he further denied the suggestion that, the said Lokesh has filed a case against him. He denied the suggestions that, keeping the ill-will and to support PW.1, he deposed false evidence and being colluded with one Chandregowda and only to harass the accused, he depsoed fasle evidence and he has alleged illicit 19 cc 19577 of 2017 affair with PW.1 and although not witnessed any incident, but to support PW.1 and her family members, he deposed false evidence etc.
26. As could be seen from record, PW.5 is none other than ASI (retired). He deposed that, on 08/06/2017 he received the case file from PW.9 and on the very same day he visited the place and conducted the mahazar in the presence of PW.1, 3 and 4. He identified Ex.P.2. His signature got marked as Ex.P.2(c). He further deposed that, he deputed PW.8 to secure the accused and after securing him, he was produced before him and a report also came to be filed. He identified Ex.P.3 and deposed further that he recorded the statement of the accused. He sent the accused to Government Hospital at Jayanagara. Accused was produced before the court. He obtained the wound certificate pertaining to PW.1. He identified the same certificate which has 20 cc 19577 of 2017 been marked as Ex.P.4 and the signature has been marked as Ex.P.4(a). He further deposed that, he recorded the statements of PW.2, 5, 6 and upon completion of investigation, he submitted the charge sheet to the court. During the evidence he identified the accused who was present before the court.
27. As could be seen from his cross-examination, he has answered strangely that the signature forthcoming on the charge sheet labeled as signature of PSI attached to Bellanduru PS is not his signature and answered further that, there is some difference in his signature. He is CW.10 as per the list of witnesses submitted together with the charge sheet. He worked at Bellanduru P.S. from 23/11/2017. He denied the suggestion of the learned counsel appearing for the accused that he has given false evidence in his examination in chief. 21 cc 19577 of 2017
28. As could be seen in his further cross-examination, he has answered that, he recorded statements of CW.2 to 6 in the police station securing their presence as per the instructions of his Inspector. However, nothing much has been elicited from the learned counsel appearing for the accused.
29. As could be seen from the record, CW.7 has deposed as PW.6. He is none other than the medical officer namely Dr.P.N.Prakash of Dr.Levin Hospital. He deposed that, on 07/06/2017 at about 5.30 p.m. one Lokeshamma had come to his hospital with a history of assault and alleged that, one Mr.Venkatesh assaulted her. She complained pain on her left foot and on left cheek and ear. There were no external injuries. He issued certificate to the said effect which has been marked as Ex.P.4. His signature got marked during his evidence as Ex.P.4(b).
22 cc 19577 of 2017
30. In the cross-examination he has denied the suggestion that, he has helped the complainant and he is negotiating with PW.1 towards purchase of her lands. He denied the suggestion that, he issued a false certificate (Ex.P-04).
31. As could be seen from the record, CW.6 has deposed as PW.7. He deposed that, he is acquainted with both PW.1 and accused. On 17/08/2017 at about 3.30 to 4.00 p.m, when he was in his house, he heard the noise and reached the spot, saw PW.1 and the accused being indulged in a fight near the house of PW.1. Accused pulled the hands of PW.1. He does not know the reason for their quarrel. Accused threw a stone towards PW.2 but it fell down. Others present over there pacified the quarrel.
32. As could be seen from the cross-examination of PW.7, he has answered that, he is a neighbor of 23 cc 19577 of 2017 PW.1 and house of the accused is situated 100 mts away from his house. He pleaded ignorance as to the date of naming ceremony of the daughter of the accused. He further pleaded ignorance regarding quarrel took place allegedly between PW.2, Aswathnarayana with the wife of the accused. He denied the suggestion that, he has illicit relationship with PW.1.
33. PW.8 is none other than the Head Constable of Bellandur PS and he deposed that, on 08/06/2017 at about 8.30 a.m. he reported to the duty. SHO instructed him to search and produce the accused. He was in patrolling duty within his jurisdiction. As per the information received from an informant he arrested the accused from the bus stop of Doddakannahalli at about 10.00 a.m. and brought him to police station around 10.30 a.m. and 24 cc 19577 of 2017 produced him before PW.5. His report submitted to the said effect has been marked as Ex.P.3.
34. As could be seen from his cross-examination he has denied the suggestion that, on 08/06/2017 he and one Jayaram had come to the house of accused at 6.00 a.m. He further denied the suggestion that, at that point of time the elder brothers of the accused namely Krishnappa and Muniraju also arrived. From his house, all of them had been to police station. He further denied the suggestion that, he was aware of the naming ceremony of the daughter of the accused and there was a function scheduled with respect to the said temple. However, during his cross-examination nothing much has been elicited by the accused although he cross-examined the said witness at length.
25 cc 19577 of 2017
35. As could be seen from evidence of PW.9, it is clear that, PW.9 is none other than the PSI of Bellanduru P.S. He has deposed that, on 07/06/2017 when he had the charge of the station as SHO, at about 4.00 p.m. PW.1 gave him a complaint in writing which has been marked as Ex.P.1. He identified his signature and it came to be marked as Ex.P.1(a) and on the basis of the said written complaint, he registered Cr.No.131/17 and forwarded the FIR to the court and to his superiors and handed over the materials for further investigation to PW.5. As could be seen from his cross examination nothing much has been elicited. He has denied the suggestion that to help the PW.1, he adduced false evidence etc and he has answered that he was not aware as to that, the accused is a Lawyer by profession.
36. As could be seen from the record, the accused has deposed in this court as DW.1 and he has stated 26 cc 19577 of 2017 that, on 06/06/2017 the PW.1 with her husband had come near the temple where the function was being celebrated and they created a scene near his house as well. Said aspect came to be informed to him by his wife. Hence on 07/06/2017, he had been to enquire the PW.1 and her husband. At that point of time, her husband scolded him using filthy language. During the said incident, the elder brother and other residents of the village were present. All PW.2 to 5 tried to assault him. But his elder brother rescued him. On the very same day husband of PW.1 has given complaint against him in the police station. On 08/06/2017 at about 6.00 a.m. police took him to the police station from his house. At his request, on the ground that, there was a ritual to be performed in his house in the backdrop of naming ceremony of his daughter etc, the police let him free for that day. He joined his family members. After the ritual, when the naming 27 cc 19577 of 2017 ceremony was being celebrated, police took him in his car to Jayanagar Hospital for medical examination and thereafter he obtained the bail from the court. On 10/06/2017, PW.1 to 5 with some of their henchmen had come near his house and picked up a quarrel citing the Civil case aforementioned and assaulted him. He tried to lodge a complaint in the Police Station, but, Police did not accept it. He filed a private complaint. Accused took bail in the said matter. When he was moving near K.R. Circle, as his car was punctured, PW.5 and his henchmen assaulted him and he took treatment in the hospital and he lodged the said complaint at Halsuru P.S. He deposed further that, as he conducted a Civil case against the PW.1 and other family members, they are harassing him.
37. To prove the function stated to have been arranged at the instance of the management of the temple 28 cc 19577 of 2017 aforesaid, he has relied upon the Ex.D.1-Invitation Card. Further he relied upon Ex.D.2-Invitation card stated to be with respect to the naming ceremony of his daughter. Ex.D.3 is a Pamphlet regarding the celebrations stated to have been held in respect of the said temple. Ex.D.4 is the order sheet pertains to a private complaint bearing its No.7530/17. Ex.D.5 is the investigation report and the FIR with respect to Cr.No.174/17 which has been numbered as CC.NO.16827/18. Ex.D.6 is the copy of a private complaint bearing its No.7530/17. Ex.D.7 is the FIR and the order sheet in respect of the complaint submitted in Halasurugate P.S.
38. Now it is proper to ascertain at this juncture as to how far the prosecution is successful in proving the case alleged against the accused as it has been alleged that the accused has committed an offence punishable U/s.504 of IPC particularly. As could be 29 cc 19577 of 2017 seen from the record, Ex.P.1 is the first information submitted by the PW.1 alleging as above. Ex.P.2 is the spot mahazar. Ex.P.3 is the statement of PC.No.6565 dated 08/06/2017. Ex.P.4 is the wound certificate pertains to PW.1 and it reads that it has been issued after treating her in respect of the history of alleged assault, allegedly made at the instance of the accused. It has been certified as well that, pw-01 had no external injuries.
39. It is clear on the basis of the evidence discussed herein above that the accused and PW.1 and their respective families are not in good terms. Admittedly there is long standing enmity as there are Civil cases. It is specifically alleged that the accused has committed an offence punishable U/s.504 of IPC.
40. The prosecution shall prove that, with an intention to provoke the breach of peace the accused has 30 cc 19577 of 2017 insulted the PW.1 scolding her using filthy language. It is no doubt true that, PW.1, PW.2, PW.4, PW.7 have supported the case of the prosecution deposing in this case as above. PW.1 and other witnesses aforementioned are consistent in deposing that, the accused was scolding PW.1 standing in front of her house using a filthy language. As could be seen from the evidence of the accused as well, he has deposed that, on 07/06/2017 only after having learnt regarding the alleged incident took place near his house at the instance of the PW.1 and 2 on 06/06/2017, he had been to enquire the PW.1, but, the husband of PW.1 used filthy language to abuse him. Therefore, for the sake of arguments, even if the evidence discussed herein above which came to be adduced by the prosecution side is ignored and brushed aside, still the evidence of the accused alone suffices to say that the accused had been near the house of 31 cc 19577 of 2017 Pw-01 and there was some exchange of words between the accused and PW.1 and 2. Therefore, the presence of accused near the house of Pw-1 and the presence of both Pw-01, Pw-02 that too on the day and time alleged by the prosecution, stands admitted at the instance of accused only as he has given the admission to the said effect as discussed herein above. The unpleasant incident alleged by the prosecution also stands admitted in the backdrop of the reason stated by the accused to reach the place near the house of Pw-01. He has admitted that, to enquire regarding the alleged incident took place on 06-06-2017 with his wife at the instance of the rival parties allegedly, he has reached the spot near the house of PW-01.
41. But mere exchange of words alone does not constitute the offence contemplated U/s.504 of IPC. 32 cc 19577 of 2017 Therefore, it is useful to extract Section .504 of IPC for better clarity.
Section 504 of IPC Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
42. On a careful reading of section 504, it is clear that, if at all there shall be constitution of an offence U/s.504 of IPC, then the insult on a person by the accused shall be intended to provoke the breach of peace. Therefore, taking into consideration the law contemplated in the aforementioned section it is clear that mere exchange of words, alone does not constitute the offence U/s.504 of IPC as aforesaid. 33 cc 19577 of 2017 The prosecution should have adduced the evidence to prove that, the accused intended to provoke the breach of peace.
43. In the case on hand although the aforementioned witnesses are consistent in deposing that, the accused has used filthy language to scold PW.1, still they did not adduce any evidence to the effect that, the accused intended to provoke the breach of peace therein.
44. No doubt, the accused in his evidence only has admitted that, on 07/06/2017 he had been near the house of PW.1 to question as to why she and her husband bothered his wife. Still, the same evidence cannot be considered to be an evidence to hold that, the prosecution has established the case against the accused for the offence punishable U/s.504 of IPC. The ingredients of the section 504 of IPC mentioned 34 cc 19577 of 2017 herein above are not forthcoming in the evidence of the prosecution.
45. Further it is not the argument of the learned APP that the accused intended to provoke the breach of peace and therefore he insulted the PW.1. Therefore, in-spite of the above aspects, as the prosecution has failed to prove the case against the accused for the offence punishable U/s.504 of IPC, this point NO.1 shall be answered in the Negative. Therefore, point No.1 is hereby answered in the Negative.
46. Point No.02;- The prosecution is duty bound to prove in this case beyond reasonable doubt that the accused has committed an offence punishable U/s.354 of IPC. It is the specific case of the prosecution that the accused had held the right hand of the PW.1 and dragged her, and slapped her. 35 cc 19577 of 2017
47. Learned counsel appearing for the accused has argued that the PW.1 and 2 are having enmity with the accused as there is a civil dispute between them. They have ensured that, the witnesses PW.4, 6 and 7 would depose against the accused only to ensure that the accused shall be punished for his no fault. Further, the learned counsel for the accused submitted that the witnesses who have supported the case of the prosecution are interested witnesses, therefore, their evidence shall not be believed and accused shall be acquitted of the offences alleged against him.
48. Learned APP has submitted that, the witnesses aforementioned are not interested as they are not keen on ensuring punishment to accused, therefore, the accused shall be punished.
36 cc 19577 of 2017
49. The law regarding the interested witness is that, if at all a witness has to be termed to be an interested witness, first thing, he should have an intention that accused shall be punished for no fault and with such intention he shall depose against one individual. If it is proved before the court that, only to ensure the punishment to accused for his no fault, if the witnesses have deposed against him, then only, said witness can be called as an interested witness.
50. In the case on hand, PW.2 is the husband of PW.1.
It can be believed for the sake of arguments for the present that, PW.2 is an interested witness as his wife is only the complainant in this matter. But in so far as PW.4 and 7 are concerned, they are eye witnesses to the incident and both of their evidence is specific to the effect that soon after hearing the noise they rushed to the spot. Therefore though the 37 cc 19577 of 2017 Pw-02 may be considered as an interested witness, the eye witnesses aforementioned cannot be considered as interested witnesses. Because in their cross examination no questions have been put by the accused in the said regard and no material is forthcoming on record to hold so.
51. PW.4 has specifically deposed that, both accused and PW.1 were pulling each other and accused was "trying" to assault PW.1 and the quarrel was pacified and all of them returned to their respective houses. As the PW.4 is being an eye witness, as he was questioned by the learned counsel appearing for accused during his cross-examination that, he deposed against the accused at the insistence of one Lokesh who has allegedly lent a sum of money to PW.4 and to ensure recovery of the loan, the said Lokesh filed a case against him and therefore he got 38 cc 19577 of 2017 ill-will against accused to support PW.1 and he deposed falsely etc.
52. But during the Examination in chief of the accused, the said aspect has not been deposed by the accused. Evidence of the accused is completely concentrated in respect of his profession and it is his defense put forward throughout this case that, as he refused to conduct the case on behalf of PW.1 and her husband and others, all of them hatched a plan and filed this present case. Be that as it may be, but after giving a thoughtful consideration in respect of the deposition of the aforementioned eye witnesses and considering the nature of the evidence of the accused, this court is of the opinion that, there was some unpleasant incident on 07/06/2017 but not to an extent alleged by the prosecution. But it is clear on the basis of the evidence adduced by both sides that, on 39 cc 19577 of 2017 07/06/2017, certainly there was a quarrel between both the parties to this case. But the prosecution is duty bound to prove that, the accused has assaulted PW.1 and he used criminal force against her with an intention to outrage her modesty as the same has been alleged by the prosecution.
53. No doubt, the accused in his evidence has not stated clearly as to why on 06/06/2017 there was an unpleasant incident by way exchange of words with her wife at the instance of his rival parties herein and also as to why the PW.1 and her husband had been near the temple to bother his wife etc. The evidence of the eye witness(PW.4) is specific to the effect that, both accused and complainant were pulling each other. But, it is not his evidence that accused used his criminal force or assaulted her with an intention to outrage her 40 cc 19577 of 2017 modesty and he went further to depose that, accused tried to assault PW.1.
54. Therefore it is clear that his evidence is available only to the effect that, the accused has not assaulted PW.1. The PW-04 went on deposing further that the said quarrel was pacified and they went home. Therefore as it being not the case of the prosecution that, even after the quarrel got pacified, the accused assaulted her again or otherwise with an intention to outrage her modesty, this case, to the said effect, cannot be believed.
55. Though the PW.1 and 2 have deposed similarly that the accused held her right hand and dragged her, assaulted her etc., the eye witnesses did not depose anything as to alleged intention of the accused to outrage the modesty of Pw-01.
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56. Therefore, keeping in mind the nature of the relationship existing between both PW.1 and 2 and keeping in mind the nature of the evidence adduced by PW.01,02,04 in so far as an accusation as to assault or use of criminal force against PW.1 at the insistence of the accused with his alleged intention to outrage the modesty of PW.1 etc., are concerned, there is no impediment to this court to say that their evidence do not help the prosecution to prove its case and to convince this court to the effect that, the accused has committed an offence punishable U/s.354 of IPC.
57. As aforementioned, the PW.7 is also an eye witness.
As per the case of the prosecution the accused held the right hand of the PW.1 and pulled her, assaulted her etc as aforesaid. PW.7 has specifically deposed that, after hearing the noise he had been to the spot and saw the quarrel between both PW.1 42 cc 19577 of 2017 and accused. In the said quarrel accused pulled the hands of PW.1. Therefore, although there is a specific evidence from PW.7 that the accused pulled the hands of PW.1, but, in respect of said sort of evidence, there is no suggestion in the cross- examination conducted by the learned counsel appearing for the accused and the said evidence adduced against accused remained undisturbed as his presence at the spot during the alleged date and time also has not been questioned and disputed by the accused throughout the trial.
58. Therefore, as the PW.7 is being an eye witness, although other suggestions regarding illicit relation alleged about the said persons and regarding the celebrations of the Anniversary of the temple etc., came to be put by the learned counsel for the accused, those suggestions do not help the accused to dismantle the evidence of PW.7 adduced to the 43 cc 19577 of 2017 said effect. Though with the help of the evidence of PW.7 it is clear in this case that, in the said incident the accused pulled the hands of PW.1, still convincing evidence has not been adduced by the prosecution to prove that the accused has used criminal force to outrage the modesty of PW.1. Because as per the evidence of Pw-04-another eye witness, and as per the evidence of PW.7 though, it is clear that, the accused and PW.1 were pulling each other, as the PW.7 has deposed that, the accused pulled the hands of PW.1, based on the same evidence alone it cannot be said that, the accused has pulled the hands of Pw-01 to outrage her modesty.
59. Be that as if may be, but in view of their relationship is being very strained in the backdrop of long standing enmity because of a Civil dispute, the evidence of eye witnessdiscussed herein above 44 cc 19577 of 2017 which has been adduced on record by him and which remained intact for the said reasons, based on said evidence only this court can say without impediment that though the intention to outrage her modesty being not proved by the prosecution, it is successful in proving the use of criminal force by the accused against PW.1.
60. Therefore though the accused has produced the documents mentioned herein above, still they do not help the accused to prove his innocence in respect of the said aspect. No doubt, the prosecution is duty bound to prove the case. Therefore, as the law under IPC is being settled that Actus reus and Mensrea both shall be proved against accused by the prosecution, although, in the case on hand the use of criminal force is being proved by the prosecution against the accused, the intention that is "Mensrea" has not been proved by the 45 cc 19577 of 2017 prosecution. In so far as accusation present in the case of the prosecution as to that he used criminal force against PW.1-the woman with an intention to outrage her modesty is concerned, the case lacs evidence of incriminating nature.
61. It is useful to extract section 354 of IPC herein for clarity.
Section 354 of IPC Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
62. Considering the evidence of the police witnesses as well which have been mentioned herein above, adduced towards proving the very accusation as to an offence alleged against the accused which is 46 cc 19577 of 2017 punishable under section 354 IPC, they also do not help the case of the prosecution for all the above reasons collectively. Therefore point NO.2 also shall be answered in the Negative as the prosecution has failed to prove its case for the offence punishable U/s.354 of IPC against the accused. Therefore, point No.2 is hereby answered in the Negative.
63. Point no.03;- For all the reasons mentioned and discussed while answering the point No.2 herein above, for the every same reasons it can be safely stated with respect to an offence alleged against accused, which is punishable U/s.323 of IPC that the accused has voluntarily caused hurt to the PW.1. Becasue the evidence of aforementioned eye witnesses is specific to the effect that, as they rushed to the spot, they saw an incident where both PW.1 and accused were pulling each other. Evidence of the aforementioned eye witnesses to the 47 cc 19577 of 2017 said effect has not been dismantled by the accused in the cross-examination and also in the evidence of the accused.
64. Therefore, although it is the defense of the accused that as he declined to represent PW.1 and his family members in a Civil case and as there is long standing enmity due to a civil case etc, Pw-1 and Pw-2 have filed this case etc, accused failed to establish his defense and he utterly failed to withstand the evidence of eye witnesses.
65. No doubt the accused has submitted the documents pertaining to the said private complaint submitted to have been registered at his insistence, copy of FIR and other order sheets pertaining to other criminal cases etc., still, accused failed to furnish the certified copies of the Civil cases pending in the court and also of a case in which he declined 48 cc 19577 of 2017 allegedly to represent them. Therefore, though the accused is successful in proving the celebrations pertaining to said temple and also the celebrattions took place in respect of the naming ceremony of his daughter, he has not proved his defense put forward in this case and he did not establish that, he is innocent as claimed by him.
66. Therefore for all the above reasons collectively and for the reasons stated while answering point NO.2 this court has no hesitation to say that the prosecution is successful at this juncture to prove that the accused has committed an offence punishable U/s.323 of IPC agaisnt the PW.1. Because the wound certificate produced by the prosecution vide Ex.P.4 is clear as to that there was only a pain and no external injury on PW.1 as on the date of the treatment and she got discharged on the very same date i.e. 07/06/2017 during 5.30 49 cc 19577 of 2017 p.m. and it being pertaining to the PW.1 with respect to the date falls back to 07/06/2017 only, as the prosecution alleges that, it is the date on which the accused has committed the offences aforementioned, and as in the evidence of the accused only he has admitted that he had been to question the PW.1 regarding what bothered her to pick a quarrel on 06-06-2017 with his wife, as stated supra the evidence adduced by the accused only makes it clear that there was an unpleasant incident took place between the accused and the PW.1 and because of the participation of the husband of PW.1 and others it was aggravated. Therefore it is apt to state that the evidence of accused makes it clear as to presence of both Pw-01 and Pw-02 and further as to presence of the accused at the spot on the said date and time. 50 cc 19577 of 2017
67. But the question is whether the prosecution is really successful in proving the case alleged against the accused or not. It is alleged that the accused has committed an offence punishable U/s.323 of IPC. For the reasons foregoing and for the reasons stated herein above while assigning reasons on point no.02 based upon the same, this court has no impediment to say that the prosecution has proved that the accused has committed an offence punishable U/s.323 of IPC. Therefore, Point NO.3 is hereby answered in the Affirmative.
68. POINT NO.04;- In so far as the case alleged against the accused for the offence punishable U/s.506 of IPC is concerned the whole evidence adduced by the prosecution is silent and they are of no use to prove the case to the said effect against the accused. Because the law contemplated U/s.506 of IPC is called as criminal intimidation. The prosecution has 51 cc 19577 of 2017 alleged that while going away from the place of the incident the accused threatened PW.1 and 2 with dire consequences asserting that he will not leave them etc. But both eye witnesses did not depose anything with respect to the offence called criminal intimidation and other witnesses including pw-1 and 2 also did not adduce convincing evidence on the said accusation.
69. Therefore, in view of absence of evidence to the said effect, it cannot be said that the accused has committed an offence punishable U/s.506 of IPC. Further PW.2 can be considered as interested witness in view of the long standing civil dispute being pending against accused. Therefore, as the evidence of PW.1 is being silent with respect to the offence contemplated U/s.506 of IPC, though the PW.2 has deposed that, the accused has threatened that he will finish of his family etc., still said aspect 52 cc 19577 of 2017 will not come under the purview of the law contemplated U/s.506 of IPC. Even if it is believed for the sake of arguments that, the accused has asserted that he will finish of the family etc, same cannot be considered to be criminal intimidation.
70. Therefore in view of the evidence of PW.1 being silent in the said regard and the evidence of eye witnesses is also being silent and non-incriminating in the said regard, the prosecution has failed to prove the case in so far as the offence punishable U/s.506 of IPC, against accused. Therefore the point No.4 is answered in the Negative.
71. Taking into consideration the nature of the case of the prosecution, their failure to prove the case alleged against the accused for the offences punishable U/sections.504, 506, 354 of IPC, it is apt to say that the prosecution is successful in 53 cc 19577 of 2017 proving that the accused has committed an offence punishable U/s.323 of IPC only.
72. Although the learned counsel appearing for the accused has argued that the PW-05 has admitted in the cross examination that the signature forthcoming on the charge sheet is not his signature etc, still, as the counsel for the accused only has failed to submit that why the charge sheet shall not be accepted to be genuine etc, and as the signature of the PSI is being forthcoming on the charge sheet and as the PW-05 is being an ASI, only the arguments aforementioned are not available to the accused. Because he only has admitted in his evidence that there was an unpleasant incident amongst them and he had been near the house of Pw-01 to enquire as to their botheration if any and for other reasons discussed herein above collectively.
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73. Taking into consideration the nature of the offence being proved as above against the accused, considering the societal stand of the accused and the PW.1 and also the reason which led them towards their quarrel etc, this court is of the considered opinion not to sentence the accused for the said offence, but to invoke the provisions contemplated under the Probation of Offenders Act 1958. Accordingly, by invoking section 03 of Probation of Offender Act, 1958 the accused has to be admonished.
For the reasons foregoing, this court is of the considered opinion to conclude this case as herein below.
74. The law contemplated U/s.357 of Cr.P.C is very specific to the effect that, if the court imposes a sentence of fine or a sentence in which fine forms a 55 cc 19577 of 2017 part, the court may while passing judgment, order the whole or any part of the fine required to be recovered in defraying the expenses incurred in the prosecution and the payment to any person in the form of compensation towards the loss or injury suffered because of the offences tried and sentenced by it, etc.
75. In the case on hand this court is of the opinion to say that in view of no sentence as to payment of fine or any other forms of sentence is being intended to be passed against the accused for the reasons foregoing, this court is having no impediment to say that the law present in section 357(1) has no applicability on the accused in this case. Further a plain reading of section 357(3) makes it clear that, when a court imposes a sentence of which fine does not form a part, the court while passing judgment, order the accused to pay by way of compensation, 56 cc 19577 of 2017 such amount as may be specified in the order to the person who suffered loss, got injured because of the offence tried and sentenced.
76. Therefore, the nature of injuries stated in the wound certificate issued vide Ex.P.4, does not call for an order to be passed to pay compensation to pw-01. It is apt to say that the accused has been held guilty for the offences punishable U/s.323 of IPC considering the evidence adduced before this court by the eye witnesses aforementioned.
77. Therefore, considering all the reasons foregoing this court has no impediment to say that, the PW.1 does not deserve any compensation as expressed herein above either under section 357 or under 357(A) of Cr.P.C. Because, there is no proper ground to invoke above provisions of Cr.P.C more particularly U/s.357(A)(3). Because no circumstances warrant 57 cc 19577 of 2017 this court to rehabilitate the PW.1 in this matter. One of the main reasons for invoking section 357(A) will be to see that the victim is properly rehabilitated. But as the present case having been proved to be an unfortunate incident took place between the rival parties herein out of provocation and as the accused has not suffered any serious external bodily injury and as the prosecution has failed to establish the case against the accused for the offence punishable under section 354 IPC, this court hereby clarifies it once again that the facts and circumstances of this case do not warrant this court to direct the accused or the State Government to pay compensation to the PW.1.
78. Therefore, the conclusion of this court in this matter is as under;-
Section 03 of Probation of Offenders Act, 1958 is very clear that when any person is found guilty of having committed an offence punishable U/s.379, 380, 381, 404, 420 or any offences punishable 58 cc 19577 of 2017 either with imprisonment for not more than 02 years or with fine or with both under any law including IPC and no previous conviction is proved against said accused, the court by which the person is found guilty is of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of an offender if it is expedient to do so, then not withstanding anything contained in any other law for the time being in force, the court may instead of sentencing such accused to suffer any punishment or to release the said accused on probation of good conduct U/s.4 of PO Act, can release such accused on due admonition.
79. For the purpose of better understanding it is useful to extract section 03 of PO Act 1958.
Section 03 of The Probation of Offenders Act, 1958 Power of court to release certain offenders after admonition; When any person is 59 cc 19577 of 2017 found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 04, release him after dueadmonition.
Explanation;- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
80. In the case on hand as the accused is being an advocate, as the offence punishable U/s.323 of IPC only having been proved by the prosecution as it being not the case of the prosecution that, the accused is the habitual offender and he has 60 cc 19577 of 2017 previous antecedent as to commission of crimes of various nature or of the nature of crime having been proved in this matter, further, as it being not the case of the prosecution that the accused has already been convicted in respect of various other cases etc. Considering the nature of the offences having been proved as aforesaid, considering all the reasons foregoing, this court feels it expedient to not to sentence the accused for the said offence as discussed herein above and this court once again feels that, it is expedient to proceed further in accordance with section 3 of the PO Act only. At this juncture, therefore no circumstances are warranting this court to call for the report from the probation officer and no circumstances are warranting this court to proceed further but to proceed only in accordance with section 3 of PO Act as this court has not invoked section 04 of said Act. 61 cc 19577 of 2017
81. Therefore no circumstances are warranting this court to hear on sentence, instead, it is apt to proceed only in accordance with section 03 of PO Act. Therefore, the following; -
ORDERS The accused is hereby admonished invoking section 03 of P.O Act 1958. The bail bonds and surety bonds of the accused shall stand canceled after the appeal period only and till completion of appeal period the bonds of the accused and of his sureties which have been furnished already in this matter shall stand continued till said period. Office is directed to furnish the copy of this judgment to the accused free of cost forthwith without giving scope for delay of any length of time.
(Dictated to the stenographer, typed by her, corrected by me and then pronounced in the open court today, that is on 30-06-2020) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 62 cc 19577 of 2017
-ANNEXURES-
List of witnesses examined on behalf of prosecution: -
PW.1 : Laskhmamma PW.2 : Anandkumar PW.3 : B.K.Manjunath PW.4 : Narendra PW.5 : Sadashivappa PW.6 : Dr.N.Prakash PW.7 : Nagaraj PW.8 : Dyavappa PW.9 : P.Jayaram
List of documents marked on behalf of the Prosecution:-
Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW.1 Ex.P.2 : Spot Mahazar
Ex.P.2(a to c) Signatures of PW.1, PW.3, PW.5.
Ex.P.3 : Report Ex.P.4 : Wound Certificate Ex.P.4(a & b) : Signatures of PW.5 and Pw.6
List of witnesses examined on behalf of accused :-
NIL List of documents marked on behalf of the accused : -
NIL List of M.O. marked on behalf of prosecution : -
NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU
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