Bangalore District Court
Hema Kumar, Asi vs Basavaraju on 4 September, 2024
KABC030074852020
Presented on : 30-01-2020
Registered on : 30-01-2020
Decided on : 04-09-2024
Duration : 4 years, 7 months, 5 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 04th day of September, 2024
C.C. No.2026/2020
State by High Grounds Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri Basavaraju
Aged about 28 years
S/o Sri Devanna,
R/at No.401, Mahadevapura,
Srirangapattana,
Mandya District.
KABC030074852020 CC No.2026/2020
2. Sri Mahadevaiah H.M.
Aged about 41 years
S/o Late Sri Marichikkaiah,
R/at No.128/67, 7th Main
road, 2nd Cross,
Cheluvappa Garden,
Bengaluru. ... Accused
(A1 Represented By Sri Gireesha. S. N., Advocate)
(A2 Represented By Sri Manjunath G. Kandekar,
Advocate)
1. Date of commission of 09-12-2019
offence
2. Name of Complainant Sri Hemakumar, ASI
of High Grounds PS
3. Offences complained of Under Section 160 of
IPC
4. Plea Pleaded not guilty
5. Final Order Accused No.1 and 2
are not found guilty
6. Date of order 04-09-2024
2
KABC030074852020 CC No.2026/2020
JUDGMENT
The Police Sub-Inspector of High Grounds Police Station submitted charge sheet against accused No.1 and 2 for the offence punishable under Section 160 of IPC
2. Prosecution Case: On 09-12-2019 between 00.30 and 01.00 hours on the public road in front of Kaveri residence situated at Kumarakrupa road, within the limits of High Grounds Police Station, accused No.1 and 2 were shouting and quarrel with each other with vulgar words and obstructing the traffic on the public road and disturbing the public peace thereby accused persons committed the alleged offence.
3. First Information Report: On receipt of credible information, CW1, ASI of High Grounds Police Station visited the Kaveri residence at Kumara Krupa Road and taken accused person to police station reported as per Ex.P1. On next day, CW5 Sri Bheemsen Ghatge conducted the spot mahazar as per Ex.P2 in the presence of CW2 and 3.
4. Investigation: After receipt of report as per Ex.P1, CW5/PW3 registered Crime No.177/2019 against the accused for the offence punishable under Section160 of IPC, prepared FIR as per Ex.P3 and sent the same to the Court and to his superior officers. Thereafter, he conducted the spot mahazar, 3 KABC030074852020 CC No.2026/2020 recorded the statement of witnesses and submitted the charge sheet against the accused for the alleged offence.
5. Accused No.1 and 2 were enlarged on bail by the order dated 27/09/2022 and 23/11/2012 respectively.
6. On receipt of charge sheet, this Court took cognizance of offence alleged against the accused.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused persons.
8. Substance of Accusation by way of plea: After hearing learned Senior APP and counsel for accused, the substance of accusation by way of for the offence punishable U/Sec.160 R/w section 34 of Indian Penal Code has been 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 5 witnesses however examined 3 witnesses and exhibited 3 documents and closed their side. The prosecution has given up the examination of CW3 and CW4 on account of examination of CW2 by the order dated 24-07-2023 and 28/02/2024.
4KABC030074852020 CC No.2026/2020
10. Statement of accused as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.1 and 2 were examined as per section 313 statement 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 09-12-2019 between 00.30 and 01.00 hours on the public road in front of Kaveri residence situated at Kumarakrupa road within the limits of High Ground Police Station, accused 1 and 2 with common intention were shouting at each other with vulgar words, obstructing the traffic on the public road and disturbing the public peace thereby resulted in commission of an offence punishable under 5 KABC030074852020 CC No.2026/2020 Section 160 R/w Section 34 of IPC?
2. What order?
13. The court's findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
REASONS
14. Point No.1: In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1 Sri Hema Kumar, informant /ASI examined as PW1 deposed that on 08/12/2019 when he was in the night duty and was patroling from 8.30 pm in Hoysala 10 wherein he received the information from control room that the two persons were abusing each other and fighting with each other near Kaveri Guest House, Kumar Krupa Road at 12.30 am. Thereafter he proceeded to the spot and brought the two persons to the station. Thereafter, on the next day, he had given his requisition and the same is marked as Ex.P1 and his signature is marked 6 KABC030074852020 CC No.2026/2020 as Ex.P1A. On the same day, he went to incident spot, CW5 drawn the mahazar in the presence of CW2 and CW3 and obtained his signature. He identified his signature and the same is marked as Ex.P2 and his signature as Ex.P2(a).
ii. CW2 Sri Arunkumar pancha witness examined as PW2 and deposed that he on request of police, affixed the signature to the Ex. P2 and his signature is marked as Ex.P2B.
iii. CW5/PW3 Sri Bhimasen Ghatge, the then PSI of High Grounds PS deposed that on 09/12/2019, when he was in the station duty around 8.40 pm, CW1 came to police station and has given written requisition. Based upon the said requisition, he registered the crime No.177/12019 for the offence punishable under section 160 of IPC. He identified his signature on Ex.P1 and the same is marked as Ex.P1(b). He identified the signature on the FIR and the same is marked as Ex.P3 and his signature as Ex.P3(a). He drawn spot Mahazar on the identification of spot by the CW1 from 10.30 am to 11 am in the presence of CW2 and CW3. He identified his signature on spot mahazar (Ex.P2) and the same is marked as Ex.P2(c). On the same day, he recorded the statement of CW4. Thereafter, the arrest procedure of accused No.1 and 2 were prepared and then they were released on bail. On 12/12/2019, after completion of investigation, IO submitted the charge sheet against the accused No.1 and 2.
7KABC030074852020 CC No.2026/2020
15. The case on hand in respect of offence under section 160 of IPC titled as Punishment for Committing Affray which provides as follows:
whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both.
Thus, it appears that the affray is punishable for an imprisonment of one month or fine of Rs. 100/-. In this regard, it is relevant to articulate I SCHEDULE of IPC is a cognizable offence triable by any magistrate.
16. Section 159 of IPC which defines the offence punishable under section 160 of IPC, which reads thus:-
"159 Affray-When two or more persons, by fighting in a public place, disturb the public peace, they are said to 'commit an affray'.
From the aforesaid section, the necessary ingredients to constitute an affray as defined in Section 159 of IPC , are (1) a fighting (2) between two or more persons 8 KABC030074852020 CC No.2026/2020 (3) in a public place, and (4) consequent disturbance of the public place.
With the aforesaid background, the case is taken up for evaluation of oral testimony of prosecution witnesses and documentary evidence
17. It is relevant to mention that there are no independent witnesses or any public was present as to the alleged incident.
18. An essential ingredient of the offence being disturbance of public peace is more pervasive and of wider reach. There must be a prima-facie positive evidence of having disturbed the tranquility, which is complained of by the one of affected. There is nothing on record to show that the accused No.1 and 2 successfully or even otherwise exchanged any blows or hot words.
19. There is no independent evidence on record to establish that there was a disturbance of public peace due to the fight of accused No.1 and 2 in a public place. In this regard, it is relevant to mention the cross examination of PW1 which has been extracted as below:
ನಾನು ಕೃತ್ಯ ಸ್ಥಳಕ್ಕೆ ಹೋದಾಗ ಸಾರ್ವಜನಿಕರು ಯಾರು ಇರಲಿಲ್ಲ ಆದರೆ ದ್ವಿಚಕ್ರ ವಾಹನದವರು ನೋಡಿಕೊಂಡು ಹೋಗುತ್ತಿದ್ದರು 9 KABC030074852020 CC No.2026/2020 Thus, it is very clear that there is no disturbance in public peace.
20. Merely causing inconvenience to the public cannot be considered to be sufficient to constitute the offence of affray. Even the accused No.1 and 2 were shouting loudly and created hindrance in the traffic, in the absence of any independent evidence would not make out any offence.
21. The police have to of course keep a vigil and take prompt action where required to restore peace but are also duty bound to distinguish between the different forms of altercation, so as to set the criminal law in motion.
22. There being no concept of automatic presumption of disturbance of peace, no material is on the record to disclose that there was a supervening apprehension of threat or danger to a third person present at the spot, eventuating in the peace being disturbed, on account of the altercation as alleged between the accused No. 1 and No. 2
23. The mahazar as per Ex.P2 was drawn at the spot however panch witness (PW2) has not supported the case of prosecution who in turn in her cross examination deposed as follows;
10KABC030074852020 CC No.2026/2020 ನನಗೆ ಪೊಲೀಸರು ಪರಿಚಯ ಇದ್ದ ಕಾರಣ ನಿಪಿ.2 ಕ್ಕೆ ಸಹಿ ಮಾಡುವಂತೆ ಹೇಳಿದ್ದು ಅದರಂತೆ ಸಹಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ.
Such being the case, the prosecution has failed to prove that Ex.P2 -spot mahazar was not proved.
24. The prosecution is required to prove its case beyond all reasonable doubt but in the case on hand, absolutely there are no materials to connect the accused persons in the commission of the alleged offence as discussed above. The prosecution miserably failed to prove that the accused No.1 and 2 are guilt of alleged offence beyond all reasonable doubt, thereby this court answers the above point No.1 in the negative.
25. Point No. 2:- For the foregoing discussion and the findings to the above point No.1, this court proceeds to pass the following:
ORDER Acting U/Sec.255(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offence punishable under Sec.160 R/W Sec. 34 of IPC.11
KABC030074852020 CC No.2026/2020
(ii) Accused No.1 and 2 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) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 4th day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri. Hema Kumar PW2 : Sri. Arun Kumar PW3 : Sri. Bhimasen Ghatge
Documents marked on behalf of the prosecution:
Ex.P1 : Requisition of CW1
Ex.P2 : Spot mahazar
12
KABC030074852020 CC No.2026/2020
Ex.P3 : FIR
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.
13KABC030074852020 CC No.2026/2020 04-09-2024 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.255(1) of the Cr.P.C.
(i) The accused No.1 and 2 are found not guilty and acquitted from the offence punishable under Sec.160 R/W Sec. 34 of IPC.
(ii) Accused No.1 and 2 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) Ordered accordingly.
VIII ACJM, B'luru City.
14