Bangalore District Court
State By vs Devidsan @ Devid S/O S. Devid on 8 February, 2023
KABC0C0004012008
IN THE COURT OF THE XI ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 08th day of February 2023
PRESENT: SRI. KUMARA.S
B.A., LL.B.,
XI Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.24188-2008
Complainant - State by, Police Sub Inspector
Hennur, Police Station,
Hennur, Bengaluru
Represented by Ld.Sr.APP
/vs/
Accused 1 Devidsan @ Devid S/o S. Devid,
Persons aged about 50 years,
2 Smt. Shibha W/o Kevidsan @
Devid, aged about 48 years, R/at
Nagareshwara Nagenahalli,
Kothanuru Post, Bengaluru
3 Chandranna (Reported to be
dead,hence case against him shall
stand abated)
4 Tyagoor benjamin(Reported to be
dead,hence case against him shall
stand abated)
5 Subbareddy @ Subbaraya Reddy
S/o Papareddy, aged about 50
years.
6 Doddarangayya @ Ranganatha S/
o Rangappa, aged about 35 years.
2 CC No.24188-2008
7 Muniraja S/o Muniswamappa,
aged about 31 years.
8 Rajanna @ Raja S/o Krishna, aged
about 28 years.
9 Srinivasa (Reported to be dead,hence
case against him shall stand abated)
10 Krishnappa S/o Narayanappa,
aged about 45 years.
11 Smt. Yoshadhamma W/o
Subbareddy @ Subbaraya reddy,
aged about 35 years.
12 Venkatesh Reddy S/o Papareddy,
aged about 58 years.
13 Suresh S/o Rangappa, aged about
30 years.
All are residing at Nagareshwara
Nagenahalli Village, Kothanuru
Post, Bengaluru
14 John Jood aged about 27 years.
(Since from the date of filing of
chargesheet he is absconded, hence
case against him is ordered to be
split up)
Represented by Sri.
G.R advocate
Date of : 12.02.2007
commission
of the
offence
Date of : 15-02-2007
report of the
offence
Date of : NIL
arrest of
accused
persons
Date of : 04-06-2008
release of
3 CC No.24188-2008
accused
persons on
bail
Name of the : Smt. Khatija @ Fathima
complainant
Date of : 12.12.2019
commencem
ent of
recording of
evidence
Date of : 03.11.2022
Closure of
evidence
Offence : U/sec. 143, 147, 148, 448,
alleged 323, 427 R/w section 149 of
IPC.
Opinion of : The accused No.1,2 and 5 to
the judge 8 & 10 to 13 are found not
guilty
Digitally signed
KUMARA by KUMARA S
Date:
S 2023.02.08
17:14:02 +0530
(KUMARA. S)
XI A.C.M.M.,
BENGALURU.
JUDGMENT
1. The P.S.I of Hennur police station has filed this charge sheet against the accused persons for the offences punishable U/Sec.143,147,148,448,427,323, R/ w section 149 of IPC.
4 CC No.24188-2008
2. The brief facts of the case of the prosecution is as under:-
That on 12.02.2007 at about 07.00 AM, at Bengaluru, Nagareshwara Nagenahalli Village, wherein accused have formed unlawful assembly and being member of unlawful assembly they have committed affray by holding deadly weapons like stones and on 11.02.2007 at about 10.00 PM the accused in furtherances of common object of unlawful assembly have picked-up quarrel with the CW-1 to 5 and abused them in foul language and have assaulted the CW-1 to 5 with hands and also have committed criminal trespass to the house of the complainant and have broken the doors, cott of the complainant house and caused loss of Rs. 1,500/- and thereby committed the alleged offences.
Hence, this charge-sheet.
3. The accused were appeared before the court, through their counsel and got enlarged on bail., I.O., after completion of investigation has submitted charge- sheet against accused persons for the alleged offences. 5 CC No.24188-2008 Cognizance was taken for the alleged offences. The prosecution papers have been furnished to the accused persons through their counsel as contemplated U/s 207 Cr.P.C. Heard regarding charge and charges were framed for the offences punishable U/sec. 143, 147, 148, 504, 323, 448, 427 R/w section 149 of IPC and read over and explained to the accused persons in the Kannada language known to them, they pleaded not guilty of offences and claimed trail.
04. A3,4, and 9 are reported to be dead, hence case against them shall stand abated. Since, from the date of filing of charge-sheet accused No.14 is absconded. Hence, case against him is ordered to be split up and a separate split up charge-sheet has been filed against him.
5. In order to prove the guilt of the accused persons, the prosecution has examined five witnesses as PW1 to 4 and got marked 2 documents as Ex.P1 &2 and stone and club are marked as MO.1 and 2. Inspite of 6 CC No.24188-2008 repeated issuance of witness warrant and proclamation against CW-4 to 12 their presence were not secured by the prosecution. Since the matter is of year 2008 ie., 12 years old case, this court has dropped the said witnesses by rejecting the prayer of Sr.APP and that closed the prosecution side.
6. The statement of accused persons u/S.313 of Cr.P.C. is recorded, wherein accused have denied the incriminating evidence available against them and they did not choose to lead defence evidence.
7. I have heard the arguments advanced by the Learned Sr. APP for the state and learned counsel for the accused persons and perused the prosecution papers:
8. The following points that would arise for consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, That on 12.02.2007 at about 07.00 AM, at Bengaluru, Nagareshwara Nagenahalli Village, wherein accused have formed unlawful assembly and became members of unlawful assembly and thereby committed an offence 7 CC No.24188-2008 punishable u/S.143 R/w section 149 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, date and time, the accused being the member of unlawful assembly have committed affray and thereby committed an offence punishable u/S.147 R/w section 149 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, date and time, the accused being the member of unlawful assembly have committed affray by deadly weapons like stones and thereby committed an offence punishable u/S.148 R/w section 149 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, that on 11.02.2007 at about 10.00 PM in furtherance of common object accused picked-up quarrel with the CW-1 to 5 and abused them in foul language and thereby committed an offence punishable u/S.504 R/w section 149 of IPC?
5. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, date and time, accused being the member of unlawful assembly, have assaulted the CW-1 to 5 with hands and thereby committed an 8 CC No.24188-2008 offence punishable u/S.323 R/w section 149 of IPC?
6. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, date and time, accused being the member of unlawful assembly, have committed criminal trespass to the house of the complainant and thereby committed an offence punishable u/S.448 R/w section 149 of IPC?
7. Whether the prosecution proves beyond all reasonable doubt that, on the above said place, date and time, accused being the member of unlawful assembly in furtherances of common object accused persons have broken the doors, cott of the complainant house and caused loss of Rs. 1,500/-
and thereby committed an offence punishable u/S.427 R/w section 34 of IPC?
08. What order?
9. My findings on the above points are as under:-
Point No.1 - in the Negative, Point No.2 - in the Negative, Point No.3 - in the Negative, Point No.4 - in the Negative, Point No.5 - in the Negative, 9 CC No.24188-2008 Point No.6 - in the Negative, Point No.7 - in the Negative, Point No.8 - As per final order, for the following;
REASONS
10. POINT NOS.1 to 7: In order to avoid repetition of facts and appreciation of evidence on record, these seven points are taken together for common consideration and discussion.
The prosecution in order to prove the guilt of the accused persons in all examined four witnesses as PW-1 to 4.
11. PW-1 Fathima @ Khatiza is said to be complainant, she has supported the prosecution case in her chief examination evidence, and deposed about alleged offences committed by the accused persons but in her chief-examination she stated that, there are 23-24 persons have committed an offences but in the charge- sheet only 14 accused have been mentioned, it creates 10 CC No.24188-2008 doubts regarding the number of accused committed the offences. Further, in her chief-examination she stated that, the accused have took Rs.12,000/- cash and have also snatched the golden chain from her daughter and incurred loss of Rs. 1,50,000/- but on perusal of charge- sheet there is no such allegation has been made and as per further statement recorded by the police she has stated that, the accused have not took the golden ornaments and also stated that some other accused persons have not involved in the alleged offences. Therefore, there is no corroboration in the evidence of PW-1 regarding the prosecution version and complaint and further statement given by her before the police.
Further, it is important to note that, this witness is not tendered for cross-examination. Therefore, her chief-evidence is no evidentiary value as she is not tendered herself for cross-examination.
12. PW-2 Salma is the said to be witness she supported the prosecution case in her chief examination 11 CC No.24188-2008 evidence and also deposed about alleged offences committed by the accused persons. But in her chief- examination she further stated that, the accused have took the golden chain of her sister Shabana and have also took the money of Rs. 12,000/- from their house and accused have caused loss of Rs. 1,50,000/-. But on perusal of her statement given before the police there is no mention of snatching of golden chain and money of Rs. 12,000/- and accused have caused loss of Rs. 1,50,000/- and there is lot of contradiction, improvements and omissions in the evidence of PW-2. Further, during the course of cross-examination by the accused counsel she deposed as under
"2002 ರಿಂದ ನನಗೆ ಆರೋಪಿತರು ಪರಿಚಯ. ಆರೋಪಿತರು ನಮ್ಮ ಓಣಿಯವರೆ ಎಂದರೆ ಸರಿ. ಆರೋಪಿಗಳ ಮೇಲೆ ಈ ಪ್ರಕರಣ ಅಲ್ಲ ದೇ ಬೇರೆ ಅನೇಕ ದೂರುಗಳನ್ನು ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನಾನು ಆರೋಪಿಗಳ ವಿರುದ್ಧ ದಾಖಲಿಸಿರುವ ಎಲ್ಲಾ ಪ್ರಕರಣಗಳಲ್ಲಿ ಆರೋಪಿಗಳು ದೋಷಮುಕ್ತರಾಗಿದ್ದಾರೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ .ಗಲಾಟೆಯಾದಾಗ ಜನ ಸೇರಿದ್ದ ರು. 22 ಜನ ಸೇರಿದ್ದ ರು. ಅವರೆಲ್ಲ ರ ಹೆಸರು ಗೊತ್ತಿಲ್ಲ . ಮಹಜರ್ ಯಾರು ಬರೆದ್ದಾರೆ ಎಂದು ನೆನಪಿಲ್ಲ .".
As already stated above her evidence is not convincing regarding the alleged offences committed by the accused persons. As there is a lot of contradiction in 12 CC No.24188-2008 her evidence and statement given by her before the police.
13. PW-3 Anwar is said to be a another witness has supported the prosecution case in his chief examination evidence and also deposed about alleged offences committed by the accused persons and he further stated that, they are 22 persons have formed unlawful assembly and accused persons have took 10.00 gram golden chian from her sister Shabana and also took the Rs. 12,000/-. But the police have mentioned 14 accused persons in the charge-sheet. On perusal of his statement given before the police there are lot improvements, contradiction and omissions and he has not stated anything about the snatching of 10.00gram golden chain and Rs.12,000/- by the accused persons in his statement. Moreover, in spite of direction by the court he is not himself tendered for cross-examination. Hence, his chief-examination evidence is no evidentiary value as he 13 CC No.24188-2008 is not tendered himself for cross-examination and cannot be reliable.
14. PW-4 Nazeera @ Nooru Mahammed she is said to be a another witness has supported the prosecution case in her chief examination evidence and also deposed about alleged offences committed by the accused persons. Further in the chief-examination she admits that, CW-1,3 and 4 are her mother, elder sister and elder brother and further stated that, the accused have took the 100 gram golden chain from the neck of his sister and also stated that, six accused persons have torn clothes of the sister. But on perusal of her statement given by her before the police there is no such averments regarding the six accused persons have torn the cloth of the her sister and snatching of golden chain. Therefore, there is a lot of contradiction, improvements, omissions in her evidence. Further during the course of cross- examination by the accused counsel she deposed as under 14 CC No.24188-2008 "ನಮ್ಮ ಅಕ್ಕ -ಪಕ್ಕ ಜನ ವಸತಿ ಇದೆ. ಆರೋಪಿತರು ನಮಗೆ ಯಾವುದೇ ಆಸ್ತಿ ಮಾರಿಲ್ಲ ಮತ್ತು ಖರೀದಿಸಿಲ್ಲ . ಶಬ್ದ ಅದಲ್ಲಿ ಜನ ಸೇರುತ್ತಾರೆ ಅಂದರೆ ಸರಿ. ಪೋಲೀಸ್ ಸ್ಟೇಷನ್ ನಮ್ಮ ಮನೆಯಿಂದ 04 ಕಿ.ಮೀ ದೂರದಲ್ಲಿದೆ. ಅರ್ಧ ಗಂಟೆಯಲ್ಲಿ ಪೋಲೀಸ್ ಠಾಣೆಯನ್ನು ತಲುಪಬಹುದು ಎನ್ನು ವುದು ಸರಿ. ಗಲಾಟೆ ದಿನ 22 ಜನ ಸೇರಿದ್ದ ರು. ಈ ಕೇಸ್ ನಲ್ಲಿ ನನ್ನ ತಾಯಿ ಕಂಪ್ಲೆನೆಂಟ್ ಇದ್ದಾಳೆ. ಗಲಾಟೆ ಆದ ಕೂಡಲೇ ಪಿರ್ಯಾದಿ ಕೊಡಲು ತೊಂದರೆ ಇರಲಿಲ್ಲ ಎನ್ನು ವುದು ಸರಿ. ಫಿರ್ಯಾದಿದಾರರು ಮತ್ತು ಸಾಕ್ಷಿದಾರರು ಸಂಬಂಧಿಕರು ಎಂದರೆ ಸರಿ. ಫಿರ್ಯಾದಿದಾರರ ಮನೆಯ ಪಕ್ಕ ಬೇರೆ ಮನೆಗಳು ಇವೆ. ನಮ್ಮ ಮನೆಯ ಮುಂದೆ ರಸ್ತೆ ಇದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ರಸ್ತೆಯಲ್ಲಿ ಸಾರ್ವಜನಿಕರು ಓಡಾಡುತ್ತಾರೆ ಎಂದರೆ ಸರಿ.
On perusal of the her evidence, her evidence is also not convincing regarding the alleged offences committed by the accused persons.
15. On perusal of the above evidence of prosecution witnesses there is no corroboration in the evidence of PW1 to 4. There are lot of contradiction, improvements and omissions in their evidence. Further, PW-4 clearly admits that, CW-1 is a mother, CW-3 is his elder sister and CW-4 is a elder brother, it clearly goes to show that, PW-1 to 4 are the interested witnesses. Moreover, PW-1 is said to be complainant and PW-3 is said to be eye witnesses though they have given chief-evidence but they are not tendered themselves for cross-examination. In view of Section 137 and 138 of Indian Evidence Act their chief evidence cannot be relied upon & read in evidence 15 CC No.24188-2008 as inspite of direction by the court PW1 and 3 are not tendered for cross-examination. Further despite of repeated issuance of witness warrant and proclamation against CW-4 to 12 their presence were not secured by the prosecution. Therefore, the non examination of material witnesses is also proved fetal to the prosecution case. Therefore, On going through the entire prosecution case,the evidence of prosecution was shaky and was non convincing regarding the alleged offences committed by the accused persons. Therefore, On careful perusal of entire materials on record, there is a reasonable doubt arises regarding the alleged offences committed by the accused persons. As per criminal jurisprudence the benefit of doubt is always in favour of the accused persons. Therefore, by giving benefit of doubt to the accused persons, this court is come to the conclusion that, prosecution has miserably failed to prove the guilt of the accused persons beyond all reasonable doubt. 16 CC No.24188-2008 Accordingly, I have answer the above points Nos.1 to7 in the Negative.
16. POINT NO.8: For the reasons assigned and finding given on the above points Nos.1 to 7 , I proceed to pass the following;
ORDER
Acting u/S.248(1) of Cr.P.C. The
accused No.1,2 and 5 to 8 & 10 to 13 are
acquitted for the offences punishable
u/S.143, 147, 448, 427,323, 504 R/w section 149 of IPC.
The bail bond executed by accused persons and their surety bonds shall stand cancelled and accused are set at liberty forthwith.
Keep the MO1 and Mo2 in split up CC.
(Dictated to the Stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 08th Day of February 2023). Digitally signed
KUMARA by KUMARA S Date:
S 2023.02.08
17:14:35 +0530
(KUMARA.S),
XI A.C.M.M., BENGALURU.
17 CC No.24188-2008
ANNEXURE
1. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION ::
PW-1 :: Fhatima @ Khatiza
PW-2 :: Salma
PW-3 :: Anvar
PW-4 :: Nazeera @ Noor Mohammed
2. DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION :
Ex.P1 :: Complaint Ex.P1(a) :: Signature of PW-1 Ex.P2 :: Panchanama Ex.P2(a) :: Signature of PW-1
3. WITNESSES EXAMINED ON BEHALF OF THE ACCUSED PERSONS ::
NIL
4. DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED PERSONS ::
NIL
5. LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION ::
MO1 : Stone Digitally
signed by
MO2 : wooden piece KUMARA
KUMARA S
Date:
S 2023.02.08
17:14:23
+0530
(KUMARA.S),
XI A.C.M.M., BENGALURU.
18 CC No.24188-2008
19 CC No.24188-2008
(Judgment pronounced in Open Court vide a separate) O RDER Acting u/S.248(1) of Cr.P.C. The accused No.1,2 and 5 to 8 & 10 to 13 are acquitted for the offences punishable u/S.143, 147, 448, 427,323, 504 R/w section 149 of IPC.
The bail bond executed by accused persons and their surety bonds shall stand cancelled and accused are set at liberty forthwith.
Keep the MO1 and Mo2 in split up CC..
Digitally signed KUMARA by KUMARA S Date: S 2023.02.08 17:14:44 +0530 (KUMARA.S), XI A.C.M.M., BENGALURU. 20 CC No.24188-2008