Bangalore District Court
State By; vs Ayappa S/O Late.Muniyappa on 4 July, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 4th day of July, 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.715/2014
COMPLAINANT : State by;
Tilak Nagara Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Ayappa S/o Late.Muniyappa,
Aged about 24 years,
Residing at No.197,
Nakalubande, 14th Main,
25th Cross, 3rd Block,
Jayanagara East, Bengaluru.
2. M.Sriram S/o Mariyappa,
Aged about 42 years,
Residing at No.365,
Nakalubande, 14th Main,
25th Cross, 3rd Block,
Jayanagara East, Bengaluru.
(Accused No.1 by Sri.R.J.,
Accused No.2 by Sri.N.N., Advocates)
2 S.C.715/2014
1. Date of commission of offence 09-07-2012
2. Date of report of occurrence 09-07-2012
3. Date of arrest of accused No.1 19-07-2012
Date of release of accused No.1 06-08-2012
Period undergone in custody 18 days
4. Date of commencement of evidence 18-11-2014
5. Date of closing of evidence 19-01-2016
6. Name of the complainant Sri.Ramalingaiah
7. Offences complained of Sec.307, 332, 353,
109 of I.P.C.
8. Opinion of the Judge As per the final order
9. Order of sentence Accused No.1 is
convicted. Accused
No.2 is acquitted
JUDGMENT
This case is committed by the II Addl. Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offences punishable under Sec.307, 332, 353, 109 of I.P.C. is exclusively triable by the court of Sessions.
2. The Police Inspector of Tilak Nagara Police Station has filed charge-sheet against accused for the 3 S.C.715/2014 offences punishable under Sec.307, 332, 353, 109 of I.P.C. arising out of Tilak Nagara Police Station in Crime No.257/2012.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, on 09-07-2012 at 7.15 p.m. within the limits of Tilak Nagara Police Station at Jayanagar 3rd Block, East End Main, near Nakalubande, CW.1 came there on Cheetha-334 vehicle as he received information from Tilak Nagara SHO stating that quarrel is going on there as accused No.1 picked-up quarrel with CW.4, 5 and went to assault them, at that time CW.2, 3 and 6 catch-hold accused No.1 and told CW.1 to take him to the Police Station when CW.1 went to catch-hold accused No.1 at that time accused No.1 picked-up quarrel with CW.1 knowing that he is a Head Constable and discharging his official duties, accused No.1 kicked CW.1 with legs and escaped from there and climbed on the sheet roof shed. Accused No.1 standing on the said sheet roof 4 S.C.715/2014 told CW.1 that "K£ÉÆà ¥ÉÇ°Ã¸ï £À£ÀÉßà »rwAiÀiÁ, £À£Àß ªÀÄUÀ£Éà ¤£Àß ªÀÄÄV¹zÉæ J®èjUÀÆ ¨ÀsAiÀÄ«gÀÄvÉÛ" and accused No.1 with intent to kill CW.1 thrown size stone which were on the roof, on the CW.1, CW.1 jumped by the side and tried to escape, in spite of it one size stone fell on the right hand of CW.1 and CW.1 had sustained blood injuries. Accused No.1 knowing well that CW.1 is discharging his official duties, has obstructed him from discharging his duty and thrown size stone on him and caused blood injury to him. Accused No.2 on the same day when accused No.1 came to him and told that he has quarreled with CW.2-Kalamma and he want to teach a lesson to her, accused No.2 told accused No.1 that he is also disliking her and she is stating that she is a BJP leader in that area and told accused No.1 to teach a lesson to CW.2. Further accused No.2 instigated accused No.1 against CW.2 stating that he will give all sorts of help to him, if Police come he will look-after them, if he has sent to jail he will engage a counsel and bring him on bail and 5 S.C.715/2014 thereby accused have committed the offences under Sec.307, 332, 353, 109 of I.P.C.
3(a) CW.16 who is the Police Sub-Inspector of Tilak Nagara Police Station on 09-07-2012 at 8.45 p.m., when in the Police Station complainant came to the Police Station and submitted written complaint. CW.16 registered the case in Crime No.257/2012 and submitted FIR to the court. Thereafter, CW.16 has handed-over the further investigation to CW.20. CW.20 who is the Police Inspector of Tilak Nagara Police Station on 10-07-2012 taken further investigation from CW.16, on the same day CW.20 has visited the spot, called CW.13 and 14-Panchas, CW.1 present on the spot and he has shown the spot, CW.20 has drawn the Spot Mahazar in presence of CW.13 and 14- Panchas, at the time of Mahazar CW.20 has seized two size stones shown by CW.1 which were used for committing the offence, thereafter CW.20 has subjected the properties seized in P.F.103/2012, on the same day CW.20 has recorded the statements of CW.2 to 6, on the same day 6 S.C.715/2014 CW.20 has directed his officials to catch-hold the accused and produce before him. On 11-07-2012, CW.20 has recorded the statement of CW.7, on 12-07-2012 CW.20 has recorded the statements of CW.8 to 12, on 18-07-2012 the officials of CW.20 have catch-hold accused No.1 and produced before him. CW.20 has arrested the accused No.1 and enquired him, accused No.1 has given voluntary statement before him. Accused No.1 in his voluntary statement has stated that accused No.2 has instigated him for committing the offence stating that he will give all sort of support to him, so he has committed the offence. Further CW.20 has recorded the statement of CW.17 to 20. On 05-10-2012, CW.20 has obtained the Wound Certificate belongs to complainant and thereafter as the investigation is completed he has filed the charge-sheet.
4. After filing the charge-sheet by the Investigating Officer, II Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered case in C.C.No.24502/2012. Thereafter, II Addl.Chief Metropolitan 7 S.C.715/2014 Magistrate Court, Bengaluru, has furnished charge sheet copies to accused as contemplated under Sec.207 of Cr.P.C. and committed the case against the accused No.1 and 2 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.715/2014 and made over to FTC-XIV. After establishment of this court, this case is made over to this court.
5. After receipt of the papers, this court has secured presence of accused No.1 and 2 and enlarged them on bail. Thereafter, this court has heard the learned Public Prosecutor for State and counsel for accused on charge to be framed. Charge under Sec.228 of Cr.P.C. framed against the accused for the offences under Sec.307, 332, 353, 109 of I.P.C. and read-over to the accused in the open court, accused pleaded not guilty and claim to be tried. Thereafter Prosecution is called upon to prove the guilt of the accused by examining the Prosecution witnesses. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 18 witnesses 8 S.C.715/2014 as PW.1 to 18, got marked 14 documents as Ex.P1 to 14 and got marked 2 material objects as MO.1, 2 and closed its side. Thereafter accused are examined under Sec.313 Cr.P.C. to enable them to explain the incriminating circumstances appearing against them in the prosecution evidence. Accused denied the statement in toto and further stated that they have no defence evidence and they have nothing to say, thereafter the case is posted for arguments.
6. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
7. The points that arise for my determination are:
1) Whether the prosecution proves beyond reasonable doubt that accused No.1 on 09-07-
2012 at 7.15 p.m., within the limits of Tilak Nagara Police Station at Jayanagara III Block, East End Main, near Nakalubande, picked-up quarrel with CW.1 knowing that he is a Police Head Constable and discharging his official duties, accused No.1 kicked CW.1 with legs and escaped from there and climbed on the sheet 9 S.C.715/2014 roofed shed and stood on the roof and told CW.1 that "K£ÉÆà ¥ÉÇ°Ã¸ï £À£ÀÉßà »rwAiÀiÁ, £À£Àß ªÀÄUÀ£Éà ¤£Àß ªÀÄÄV¹zÉæ J®èjUÀÆ ¨ÀsAiÀÄ«gÀÄvÉÛ", accused No.1 with an intention to commit the murder of CW.1, thrown two size stones on CW.1, CW.1 jumped by the side and tried to escape and in spite of it one size stone fell on the right hand and CW.1 has sustained blood injuries, accused No.1 attempted to kill CW.1 and thereby committed the offence under Sec.307 of I.P.C?
2) Whether the prosecution proves beyond reasonable doubt that accused No.1 on the above said date, time and place, picked up quarrel with CW.1 knowing that he is Police Head Constable and bound to discharge his official duties, kicked him with his legs and thrown size stone on him and caused blood injuries to him and thereby committed the offence punishable under Sec.332 of I.P.C.?
3) Whether the prosecution proves beyond reasonable doubt that accused No.1 on the above said date, time and place, knowing that CW.1 is the Police Head Constable and discharging his 10 S.C.715/2014 official duties, picked-up quarrel with him and kicked him with leg, thrown size stone on him and caused blood injury to him and thereby obstructed him from discharging his official duties and thereby committed the offence punishable under Sec.353 of I.P.C.?
4) Whether the prosecution proves beyond reasonable doubt accused No.2 on 09-07-2012 when accused No.1 came to him and told that he has quarreled with CW.2-Kalamma and he want to teach a lesson to her, accused No.2 told accused No.1 that he is also disliking CW.2 as she is saying in the area that she is a BJP leader and told accused No.1 to teach a lesson to CW.2, accused No.2 instigated accused No.1 saying that he will give all sorts of help to him if Police come he will look-after them, if he has sent to jail he will engage a counsel and bring him on bail and instigated him to commit the offence against CW.2 and as per the instigation accused No.1, accused No.2 has committed the offence and thereby committed the offence under Sec.307, 353, 332 r/w Sec.109 of I.P.C.?
5) What order?
11 S.C.715/2014
8. My findings on the above points are as follows:
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : In the Affirmative;
Point No.4 : In the Negative;
Point No.5 : As per final order
For the following;
REASONS
9. POINT No.1 TO 4: The above points are
interconnected, hence they are taken up together for discussion.
10. It is the case of the prosecution that the accused have committed the offences punishable under Sec.307, 332, 353, 109 of I.P.C. and in order to prove the guilt of the accused prosecution in all examined 18 witnesses and they are; PW.1-Smt.Kalamma wife of Jayaramaiah-eye witness, PW.2-Smt.Jayamma wife of Rajanna-eye witness, PW.3-Kum.Savitha daughter of Rajanna-eye witness, PW.4-Belegowda son of Hanumaiah- 12 S.C.715/2014 eye witness, PW.5-Raju son of Thimmaiah-eye witness, PW.6-K.Ramalingaiah son of Kempegowda-Complainant, PW.7-Smt.Lakshmi wife of Muniyappa-eye witness, PW.8- Smt.Puttathayamma wife of Muniyappa-eye witness, PW.9- Smt.Narayanamma wife of Ganganna-eye witness, PW.10- Smt.Chennamma wife of Late.Raju-eye witness, PW.11-Dr. Kavitha Prakash wife of Jayachandra.T- Lady Medical Officer, PW.12-Ramesh B.R. son of Ramegowda-Police Constable, PW.13-Chandrappa S.S. son of Muniyappa- Police Sub-Inspector, PW.14-K.Karthik son of Kannan-Spot Mahazar Pancha, PW.15-Smt.Nagamma wife of Dhanapal- eye witness, PW.16-Shabbir Khaji son of Syed Sab-Police Constable, PW.17-Chinnaswamy son of Puttaiah-eye witness, PW.18-R.R.Kalyanashetty son of R.S.Kalyanashetty
- Police Inspector who has conducted the later part of investigation.
11. The prosecution in order to prove guilt of the accused in all got marked 14 documents and they are; 13 S.C.715/2014
Ex.P1-Portion of statement of PW.3, Ex.P2-Portion of statement of PW.4, Ex.P3-Portion of statement of PW.5, Ex.P4-Complaint, Ex.P5-Spot Mahazar, Ex.P6-Portion of statement of PW.7, Ex.P7-Portion of statement of PW.8, Ex.P8-Portion of statement of PW.9, Ex.P9-Portion of statement of PW.10, Ex.P10-Wound Certificate, Ex.P11-FIR, Ex.P12-Report given by Police Sub-Inspector to Police Inspector, Ex.P13-Portion of statement of PW.15, Ex.P14- Portion of statement of PW.14. Prosecution has got marked two material objects and they are; MO.1 and 2-Size Stones.
12. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined the complainant as PW.6 and PW.6 in his evidence stated that in the year 2012 he was working as Head Constable at Tilak Nagar Police Station. On 09-07-2012 he was on day duty and he was patrolling within the limits of his Police Station. On that day at 7.45 p.m., when he was patrolling, the SHO of his Police Station informed him that at Jayanagar III Block, Nakalubande, quarrel is going on and asked him to 14 S.C.715/2014 go there and he came near the Nakalubande at 8.00 p.m., there quarrel was going on and many persons were assembled there and there few persons have catch-hold one person and the persons who have catch-hold that person told the name of that person as Ayappa and he went to catch-hold that Ayappa and he kicked him with legs on his legs and he escaped and climbed on the sheet roofed shed. The said Ayappa has thrown two size stones on him in order to kill him and told that if he kill him the other persons will have fear about him and he escaped and one stone touched his fingers and thereafter accused Ayappa ran away from that place. Ayappa has thrown size stone on him in order to kill him, at that time one Belegowda, Kalamma, Raju and others were present and he came to the Police Station and lodged the complaint as per the Ex.P4, he has taken treatment at Jayanagar General Hospital, on the next day at 9.00 a.m., he has shown the spot to CW.20 and CW.20 has drawn Spot Mahazar on the spot in presence of Panchas, he has shown size stone used for committing the offence to 15 S.C.715/2014 CW.20 and CW.20 has seized the same and identified the Mahazar as Ex.P5 and identified the size stone seized as MO.1, 2 and identified the accused No.1-Ayappa present before the court. Further this witness has stated that on that day CW.5 was washing the staircase steps of the first floor and at that time the water fell on accused No.1 and for that accused No.1 quarreled with CW.4, 5 and abused CW.2, 4 and 5 in filthy language. Prosecution treated this witness hostile in part and cross-examined him, and in the cross-examination this witness has admitted that accused No.1 has abused him saying that "K£ÉÆà ¥ÉÇ°Ã¸ï £À£ÀÉßà »rwAiÀiÁ, £À£Àß ªÀÄUÀ£Éà ¤£Àß ªÀÄÄV¹zÉæ J®èjUÀÆ ¨ÀsAiÀÄ«gÀÄvÉÛ" and further this witness has stated that he is not remembering whether size stone thrown by the accused No.1 fell on his right hand finger. Further this witness has admitted that, in the complaint he has mentioned that the said size stone fell on his right hand finger and he has sustained injuries there. Further this witness has admitted that, on that day he has 16 S.C.715/2014 sustained abrasions on cheek and he has sustained tenderness over the chest. The counsel for the accused cross-examined this witness and in the cross-examination nothing has been made out so as to disbelieve his evidence. This witness in the cross-examination stated that he cannot give the boundaries of the spot. After the closure of his evidence on 29-01-2015, accused has filed application under Sec.311 of Cr.P.C. for recalling PW.1 for further cross-examination and as per the order passed on the application under Sec.311 of Cr.P.C. dated 04-04-2016, PW.6 has been recalled for further cross-examination of accused No.1 and this witness has been further cross- examined by the counsel for the accused No.1 on 04-05- 2016 and in the said cross-examination this witness has stated that on that day as it was dark he has not seen who has put the size stone on that day. Further this witness has admitted that he was not having any ill-will with accused No.1. This witness has denied the suggestion made to him that as per the say of his superiors he has 17 S.C.715/2014 lodged complaint, further stated that he has lodged the complaint in respect of the incident only. As this witness in the cross-examination stated that it was dark and he has not seen the person who has put the size stone, prosecution has sought permission for cross-examining this witness and permission has been granted and prosecution has cross- examined this witness and in the cross-examination this witness has admitted that he has written the complaint in his own hand-writing and further admitted that he has stated true facts of the incident in the complaint. Further this witness in the cross-examination admitted that when he came to the spot on that day, one person by name Ayappa has taken drinks and quarreling there. Further this witness has admitted that when he went to catch-hold that person, the said person climbed on the shed which is sheet roofed and further admitted that the person who climbed on the shed is the accused No.1 present before the court. Further this witness has admitted that accused No.1 told him that "K£ÉÆà ¥ÉÇ°Ã¸ï £À£ÀÉßà »rwAiÀiÁ, £À£Àß ªÀÄUÀ£Éà ¤£Àß ªÀÄÄV¹zÉæ 18 S.C.715/2014 J®èjUÀÆ ¨ÀsAiÀÄ«gÀÄvÉÛ". Further this witness has admitted that he has written the name of the eye-witness who have witnessed the incident in the complaint. Further this witness has admitted that thereafter accused No.1 ran away from the spot. If the entire evidence of this witness is scrutinized, this witness has clearly identified the accused No.1 and further clearly stated that accused No.1 has abused him and when he went to catch-hold him, he climbed on the sheet roofed shed and he thrown two size stones on him in order to kill him and he escaped and one stone fell on his right hand and he sustained injuries.
13. The learned Public Prosecutor has relied upon citation reported in 2010 Cri.L.J. 1515 in (Case: Krishna Vs. State of Karnataka, wherein the lordship of our own Hon'ble High Court have held as under;
"(A) Evidence Act (1 of 1872) S.3 -
Hostile witness - Credibility - Witness fully supports prosecution case in his examination- in-chief as to any material relevant fact - But turns hostile to prosecution in his cross- examination made on behalf of accused on a later date and states contrary to his evidence 19 S.C.715/2014 in his examination-in-chief as to the said fact
- Evidence of such hostile witness in his examination-in-chief has to be accepted as true if it is not shown that what he stated in his examination-in-chief was not stated by him at the earliest opportunity, in his statement recorded under Sec.161 of Cr.P.C. by Investigating Officer."
14. In the present case also PW.6 who is the complainant in his examination-in-chief has stated what he has stated in the complaint. Further PW.6 has been cross- examined by the counsel for the accused on 29-01-2015 and on that day nothing has been made out in the cross- examination of PW.6. Thereafter, the learned Public Prosecutor has lead the evidence of other witnesses and prosecution has closed its side, Sec.313 Cr.P.C. statements came to be recorded and case is posted for arguments. The learned Public Prosecutor has advanced arguments and when case is posted for arguments on behalf of accused No.1, at that stage counsel for the accused No.1 has filed application under Sec.311 of Cr.P.C. for further cross- examination of accused No.1 and the said application came 20 S.C.715/2014 to be allowed and counsel for the accused No.1 has further cross-examined PW.6 on 04-05-2016 and at that time PW.6 has stated that he has not seen who has put that stone on him as it was dark, he cannot say the name of specific person who kicked on that day and after that cross- examination the learned Public Prosecutor has sought permission of the court for cross-examining the PW.6 and as PW.6 has given contrary statement to that of his examination given earlier, the permission has been granted and learned Public Prosecutor has cross-examined PW.6 and in the cross-examination again PW.6 has clearly identified the accused No.1 and stated that he written the complaint in his own handwriting and he has written the complaint as per the incident only. So in the present case in hand also principles laid down in the above cited ruling are aptly applicable and in the present case also it is to be taken that what PW.6 has stated in the examination-in- chief is correct.
21 S.C.715/2014
15. Further learned Public Prosecutor for the state has relied upon citation reported in (2015) 2 Supreme Court Cases (Cri) 226 in (Case: Vinod Kumar Vs. State of Punjab), wherein the Hon'ble Apex Court have held as under;
"C. Criminal trial - witnesses - Hostile witness - Evidence of - Admissibility -
Reiterated, even if a witness is characterized as a hostile witness, his evidence is not completely effaced - Said evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence, as in present case - Evidence Act, 1872, S.154(2)"
16. Prosecution examined PW.1 and PW.1 in her evidence stated that CW.4-Jayamma is her sister, CW.5 is the daughter of CW.4. On 09-07-2012 at 7.40 when he was near her house, CW.5 was cleaning the staircase on the first floor and at that time the water fell on the accused No.1 who was below the staircase and the accused No.1 started to abused CW.5 and CW.5 intimated regarding the same to her and at that time CW.4 was also there and accused No.1 was abusing CW.5 and he asked accused No.1, why he is 22 S.C.715/2014 abusing and at that time CW.3 and 6 also came and advised accused No.1 not to abuse. Accused No.1 has not stopped abusing, she intimated regarding the incident to the Tilak Nagar Police on phone and CW.1 came on Cheetha vehicle on the spot and CW.1 went to catch-hold accused No.1 and accused No.1 escaped and climbed on the shed which is sheet roofed, at that time accused No.1 has taken drinks and he was intoxicated, accused No.1 also abused CW.1, accused No.1 has thrown stones on CW.1 and the same was touched on the shoulder of CW.1 thereafter accused No.1 has jumped from the shed and ran away. Accused No.1 has thrown the stones on CW.1 in order to kill him and identified the accused No.1 present before the court and identified the stones as MO.1 and 2.
17. The counsel for the accused cross-examined this witness and PW.1 in her evidence admitted that her husband is Head Constable. Further PW.1 in her cross- examination stated that accused No.1 has not thrown size stone on her. Further this witness has stated that the size 23 S.C.715/2014 stone thrown by the accused No.1 was not fell on the public. Further this witness has stated that he has not seen on which part of the body the size stone touched to CW.1 and the said admissions will no way affect the evidence given by PW.1. PW.1 in her evidence clearly stated regarding the incident and identified the accused No.1 and narrated regarding the incident. CW.1 is no way related to this witness. Further CW.1 came on the spot for discharging his official duties and at that time incident happened. Further it is no way case of the prosecution that accused No.1 has thrown the size stone on the public. It is the specific case of the prosecution that accused has thrown size stones on CW.1 in order to kill him. This witness has stated that she has not seen on which part of the body of CW.1 the said stones touched and that itself will not affect her evidence. She has stated regarding throwing of size stone by accused No.1, she has identified the accused and her evidence corroborates with the evidence of CW.1.
24 S.C.715/2014
18. Further prosecution has examined PW.2 and PW.2 in her evidence stated that CW.2-Kalamma is her elder sister, CW.5 is her daughter. She and CW.2 are residing in one building, she know the accused No.1. Two years earlier to her evidence at 7.00 p.m., she was in her house and her daughter CW.5 was cleaning the staircase and at that time water fell on accused No.1 who was below the staircase and for that accused No.1 was abusing CW.5 in filthy language. She came and asked her daughter to say Sorry to accused No.1 and her daughter has stated Sorry to accused No.1 and in spite of that again accused started abusing and she informed regarding the same to CW.2 and thereafter Police came and they went to catch-hold accused No.1 accused climbed on the shed which is sheet roof and accused has thrown size stone on the Police from the shed and no one has sustained any injuries and identified the size stone as MO.1 and 2. Prosecution treated this witness hostile in part and cross-examined this witness and in the cross-examination this witness has admitted that size stone 25 S.C.715/2014 thrown by the accused No.1 fell on the right hand finger of CW.1. The counsel for the accused cross-examined this witness and nothing has been made out in her cross- examination so as to disbelieve her evidence. The evidence of this witness also corroborates with the evidence of complainant and CW.2.
19. Prosecution has examined PW.3 and PW.3 in her evidence stated that CW.4 is her mother. CW.2 is her mother's elder sister, she know accused No.1, accused No.1 residing nearby her house. Two years earlier to her evidence at 7.45 she was cleaning the staircase and at that time some water fell on the accused No.1 who was below the staircase and accused No.1 started to abuse her in filthy language and she told accused No.1 that due to mistake water fell and thereafter also accused No.1 started abusing her thereafter her mother intimated regarding the same to CW.2 and there accused No.1 started quarrelling. CW.2 intimated to the Police by phone and Police came on the spot, accused No.1 climbed on the said sheet roofed house 26 S.C.715/2014 and he has thrown size stones on the Police thereafter she went inside the house and identified the stones as MO.1 and 2. The learned Public Prosecutor treated this witness hostile in part and cross-examined her and she has stated that she is not knowing whether accused No.1 has thrown size stones on CW.1 in order to kill him. The counsel for the accused cross-examined this witness and in the cross- examination this witness has stated that she has seen the accused throwing size stone but she has not seen on whom the said stone fell. The evidence of this witness is corroborated with the evidence of CW.1, 2 and 5.
20. Prosecution examined PW.4, 5, 7, 8, 9, 10, 15 and 17 and they are the eye-witnesses and they turned hostile. Prosecution cross-examined them and nothing has been made out in their cross-examination so as to help the prosecution to prove the guilt of accused.
21. Prosecution examined PW.14. PW.14 in his evidence stated that on 10-07-2012 he was proceeding near Jayanagar Slum, the Police came there and obtained his 27 S.C.715/2014 signature, Police have not shown any other things there, he is not knowing who was accompanied the Police on that day, he is not knowing what is written in Ex.P5. Prosecution treated this witness hostile, cross-examined him and nothing has been made out in his cross- examination so as to help the prosecution to prove the drawing of Ex.P5-Spot Mahazar and seizure of MO.1 and 2- Stones.
22. Prosecution examined PW.12 and 17. They in their evidence stated that they are working as Police Constable at Tilak Nagar Police Station and on 18-07-2012 the Police Inspector of their Police Station asked them for catch-holding the accused and they came to Jayanagar Nakalubande and contacted their informants and their informants told them that accused No.1 is near Jayanagar III Block, Corporation Ground and shown them and they have catch-hold him and brought to the Police Station and produced before the Police Inspector.
28 S.C.715/2014
23. Prosecution has examined PW.11. PW.11 is the Medical Officer and she in her evidence stated that in the year 2012 she was working as Medical Officer at General Hospital, Jayanagar, Bangalore. On 10-07-2012 at 12.30 a.m., injured Ramalingaiah, Head Constable of Tilak Nagara Police Station came to the Hospital along with Mallikarjunaiah, ASI, on the history of assault by one Ayyappa of Nakalubande on 09-07-2012 at 8.30 p.m. and she examined the injured. The injured was sustained abrasion over the right middle and index finger, abrasion over the chin area, tenderness all over the chest area. She advised the patient to obtain X-Ray of his right hand and she referred the patient to Orthopedic Surgeon and X-Ray was taken, no fracture was seen. Further this witness has stated that the said injuries are simple in nature and for examining the injured she has issued Wound Certificate and identified the same as Ex.P10. Further this witness has stated that if MO.1 and 2 are thrown from height and if a person escapes the same and if the said stone came in 29 S.C.715/2014 contact with hand, the injury NO.1 mentioned in Ex.P10 are likely to be caused. Further this witness has stated that if two persons are quarrelling, the injuries No.2 and 3 mentioned in Ex.P10 are likely to be caused in pushing and pulling. The counsel for the accused has suggested to this witness that the injuries mentioned in Ex.P10 are likely to be caused in road accident and this witness has admitted the same. The counsel for the accused has not suggested to the complainant that he has sustained the injuries in the road accident. So the said suggestion will no way help the accused to prove his defence.
24. Prosecution has examined PW.13. PW.13 in his evidence stated that in the year 2012 he was working as Police Sub-Inspector at Tilak Nagar Police Station. On 09- 07-2012 at 8.45 when he was in the Police Station, complainant came to the Police Station and submitted his written complaint. He has obtained the same and registered the said complaint in Crime No.257/2012 and submitted FIR to the court and thereafter handed-over the 30 S.C.715/2014 further investigation to CW.20. Further this witness has stated that on 08-07-2012, CW.20 has directed him and CW.17 to 19 for catch-holding the accused and he and other officials went for catch-holding the accused and on that day at 9.00 p.m. near the Corporation Ground, accused No.1-Ayappa was there and they have catch-hold him and brought him to the Police Station and produced before CW.20 at 9.15 and produced the Report as per Ex.P12.
25. Prosecution examined PW.18. PW.18 in his evidence stated that in the year 2012 he was working as Police Inspector at Tilak Nagar Police Station. On 10-07- 2012 he has taken further investigation from CW.16. On the same day he has visited the spot, called CW.13, 14- Panchas, CW.1 has shown the spot and he has drawn the Spot Mahazar as per rex.5 before the Panchas, CW.1 has shown two size stones used for committing the offence and he has seized the same and identified the said size stones as MO.1 and 2. Further this witness has stated that on the 31 S.C.715/2014 same day he has recorded the statement of CW.2 to 6 and on the same day he has directed his officials to catch-hold the accused No.1 and produce before him. On 11-07-2012 he has recorded the statement of CW.7. On 12-07-2012 he has recorded the statements of CW.8 to 12. On 18-07-2012 his officials have produced accused No.1 before him, he has arrested him, enquired him and he has given voluntary statement before him, accused No.1 in his voluntary statement stated that accused No.2 told him that he will give all sorts of help for committing the offence and further stated that as accused No.2 told him to quarrel with CW.2, he has quarreled with CW.2, he has recorded the statement of CW.17 to 20. On 05-10-2012 he has obtained the Wound Certificate of CW.1, thereafter as the investigation is completed he has filed the charge-sheet. The counsel for the accused cross-examined this witness and PW.13 and nothing has been made out in their cross-examination so as to help the accused to prove his defence.
32 S.C.715/2014
26. It is the specific case of accused No.1 that he has not committed any offences as alleged against him, he has been falsely implicated in this case. It is the case of accused No.2 that, he has not given any instigation to accused No.1, accused No.1 has not given any voluntary statement before the Investigating Officer and not stated before the Investigating Officer that he has instigated him for committing the offence. Investigating Officer only in order to harass him, got implicated him in this case. In the present case, except the PW.18 who in his evidence stated that accused No.1 has given voluntary statement before him and wherein he has stated that accused No.2 has instigated him to commit the offence, there is nothing on record to prove that accused No.2 has instigated accused No.1 for commiting the offence. Accused No.1 has denied that he has given voluntary statement before the Investigating Officer. Further as per Sec.27 of the Indian Evidence Act, part of confession on the basis of which recovery is made, that part of confession is admissible. In the present case, it 33 S.C.715/2014 is the case of Investigating Officer that accused No.1 has given voluntary statement before him and wherein he has confessed that accused No.2 has instigated him for committing the offence and in the present case as there is no recovery on the basis of the said statement, so the said statement is hit by Sec.26 of the Indian Evidence Act. There is no other material on record to prove accused No.2 has instigated accused No.1 for committing the offences, so prosecution has utterly failed to prove that accused No.2 has instigated the accused No.1 for committing the offence and accused No.2 has committed the offences under Sec.307, 332, 353 r/w 109 of I.P.C. So prosecution has utterly failed to prove the charges leveled against accused No.2.
27. In the present case, complainant has clearly narrated regarding the incident, identified the accused No.1 and clearly stated that accused No.1 obstructed him in discharging his duties, accused No.1 has abused him in filthy language, accused No.1 has kicked him and caused 34 S.C.715/2014 simple hurts to him, accused No.1 has thrown stones on him in order to kill him and he has escaped and one size stone touched his right hand and he has sustained injuries. In the cross-examination, CW.1 has stated that on that day it was dark and he has not seen the accused but when again prosecution has cross-examined CW.1 he has clearly stated regarding the identification of accused No.1. If the entire evidence of CW.1 is scrutinized, the same clearly goes to show that CW.1 has narrated regarding the incident an identified the size stone used for committing the offence. Further in the present case CW.2 who is also eye-witness and she in her evidence clearly narrated regarding the incident, identified the accused No.1 and clearly stated that accused No.1 has thrown the size stone on CW.1 in order to kill him and CW.1 has escaped and evidence of CW.2 is also corroborated with the evidence of CW.1. Further in the present case, CW.5 is also an eye-witness and she has clearly narrated regarding the incident, identified the accused No.1 and clearly stated that on that day accused 35 S.C.715/2014 No.1 has thrown the stones on the complainant, so that part of evidence of CW.5 also corroborated with the evidence of CW.1 and 2. Further CW.5 who is also eye-witness and she has clearly stated that on that day accused has picked- up quarrel with them and CW.2 informed the Police on phone and CW.1 who is a Police official came on the spot and he went to catch-hold accused No.1, accused No.1 climbed on the sheet roofed house and he has thrown stones on CW.1 and that part of her evidence is corroborated with the evidence of CW.1, 2 and 5.
28. Further in the present case, the complainant has stated regarding the drawing of Spot Mahazar. He has stated that on the next day the Investigating Officer came to the spot and he has shown the spot and Investigating Officer has drawn the Spot Mahazar as per Ex.P5 in his presence and seized MO.1 and 2 from the spot and that part of evidence is also remain unchallenged and evidence of CW.1 coupled with the evidence of Investigating Officer proves drawing of Spot Mahazar and seizure of MO.1 and 2. 36 S.C.715/2014 Further in the present case, prosecution has examined the Medical Officer who has examined CW.1 as PW.11 and PW.11 has clearly stated that CW.1 has been brought by the ASI Mallikarjunaiah of Tilak Nagar Police Station to the Hospital on 10-07-2012 at 00.30 hours and she has examined CW.1 and narrated the injuries sustained on his body and further stated that for examining the injured she has issued Wound Certificate as per Ex.P10 and injuries mentioned in Ex.P10 are simple in nature. Nothing has been made out in her cross-examination so as to disbelieve her evidence and evidence of PW.11 also corroborates the case of prosecution. So the evidence of PW.1, 2, 4, 5 and the evidence of Medical Officer and Investigating Officer proves beyond reasonable doubt that accused on 09-07- 2012 at 7.15 p.m., picked-up quarrel with CW.1 knowing that he is Head Constable discharging his duties and kicked him with legs and escaped from there and climbed on the shed and standing on the roof abused CW.1 in filthy language and with intent to kill CW.1 has thrown the size 37 S.C.715/2014 stone on CW.1 and CW.1 has escaped and one stone fell on the right hand of CW.1 and CW.1 has sustained injuries and thereby accused No.1 has committed the offences under Sec.307, 332, 353 of I.P.C. Hence, for the above discussions, I answered point No.1, 2 and 3 in the AFFIRMATIVE. Prosecution has failed to prove that accused No.2 has instigated accused No.1 for committing the offences, so prosecution has failed to prove that accused No.2 has committed the offences under Sec.307, 332, 353 r/w 109 of I.P.C. Hence, I answered point No.4 in the NEGATIVE.
29. POINT No.5: In view of my findings point No.1 to 4 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.2-M.Sriram is acquitted for the offences punishable under Sec.307, 332, 353 r/w Sec.109 of I.P.C.38 S.C.715/2014
Bail bonds of the accused stands cancelled forthwith.
Acting under Sec.235(2) of Cr.P.C., accused No.1-Ayappa is convicted for the offences under Sec.307, 332, 353 of I.P.C.
Order regarding sentence is deferred for hearing the accused regarding the sentence as contemplated under Sec.235(2) of Cr.P.C. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 4th day of July, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ORDER REGARDING SENTENCE Heard accused and his counsel regarding imposition of sentence. Heard the arguments advanced by the learned Public Prosecutor regarding imposition of sentence. Accused No.1 has stated that he is unmarried aged about 25 years and he is Auto Driver by profession. 39 S.C.715/2014 He is having mother aged about 55 years and also sister her children. His mother and sister are depending on him. He is the only earning member in his family. The offences committed by him are the first offence. Looking to the facts and circumstances of the case, lenient view my be taken while imposition sentence.
2. The learned Public Prosecutor has submitted that accused No.1 has committed the offences under Sec.307, 332, 353 of I.P.C. Looking to the facts and circumstances of the case, lenient view may be taken while imposing sentence so as to lesson to the others in the society not to commit such offences.
3. Prosecution has proved beyond reasonable doubt that accused No.1 has committed the offences under Sec.307, 332, 353 of I.P.C. The offence under Sec.307 is punishable with imprisonment for 10 years and fine and if such act caused hurt to the person, imprisonment for life or imprisonment for 10 years and fine. The offence under Sec.332 of I.P.C. is punishable for 40 S.C.715/2014 imprisonment for 3 years or fine or both. The offence under Sec.353 of I.P.C. is punishable with imprisonment for 2 years or fine or both. In the present case, Ex.P10 discloses that injuries sustained to CW.1 are simple in nature. The offence punishable under Sec.307 of I.P.C. is punishable with imprisonment for life or imprisonment for 10 years and fine, so accused is not entitled for benefit under Sec.3 and 4 of P.O. Act and Sec.360 of I.P.C.
Looking to the facts and circumstances of the present case and injuries sustained to CW.1, the first offence committed by the accused, age and family background and dependence of the accused, sentence of imprisonment for 3½ years and fine of Rs.2,000/- is sufficient for the offence under Sec.307 of I.P.C. and in default of fine simple imprisonment of 2 months is sufficient. Further looking to the present facts and circumstances, imprisonment of 1 ½ years and fine of Rs.1,000/- is sufficient for the offence under Sec.332 of I.P.C., and in default of fine accused to undergo simple imprisonment for 1 month is sufficient. 41 S.C.715/2014 Further looking to the facts and circumstances of the present case, the sentence of imprisonment for 1 year is sufficient and fine of Rs.1,000/- is sufficient for the offence under Sec.353 of I.P.C. and in default of fine simple imprisonment for 1 month is sufficient. Accused has undergone judicial custody from 19-07-2012 to 06-08- 2012, so accused is entitled for set off for judicial custody undergone by him as contemplated under Sec.428 of Cr.P.C. Hence, I proceed to pass the following;
ORDER Acting under Sec.235(2) of Cr.P.C., accused No.1 is convicted for the offences under Sec.307, 332, 353 of I.P.C.
Accused No.1 is sentenced to undergo simple imprisonment for 3 ½ years and to pay fine of Rs.2,000/- for the offence under Sec.307 of I.P.C., in default of payment of fine, accused shall undergo simple imprisonment for 2 months.
Accused No.1 is sentenced to undergo simple imprisonment for 1 ½ years and to pay fine of Rs.1,000/- for the offence under Sec.332 of I.P.C., 42 S.C.715/2014 in default of payment of fine accused No.1 shall undergo simple imprisonment for 1 month.
Accused No.1 is sentenced to undergo simple imprisonment for 1 year and to pay fine of Rs.1,000/- for the offence under Sec.353 of I.P.C., in default of payment of fine accused No.1 shall undergo simple imprisonment for 1 month.
Sentence of imprisonment shall run
concurrently.
Accused is entitled for set-off under Sec.428 of Cr.P.C. for the period which he has already undergone being in judicial custody.
Accused has undergone judicial custody from 19-07-2012 to 06-08-2012. Issue conviction warrant accordingly.
MO.1 and 2 are worthless, hence ordered to destroyed after the appeal period is over.
Office to supply copy of judgment to the accused No.1 free of cost.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 4th day of July, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
43 S.C.715/2014ANNEXURE Witnesses examined for the prosecution:
PW.1 Kalamma CW.2 18-11-2014
PW.2 Jayamma CW.4 18-11-2014
PW.3 Savitha CW.5 18-11-2014
PW.4 Belegowda CW.3 05-01-2015
PW.5 Raju CW.6 05-01-2015
PW.6 Ramalingaiah CW.1 29-01-2015
PW.7 Smt.Lakshmi CW.7 22-07-2015
PW.8 Puttathayamma CW.8 22-07-2015
PW.9 Narayanamma CW.9 22-07-2015
PW.10 Chennamma CW.10 22-07-2015
PW.11 Dr.Kavitha Prakash CW.15 29-09-2015
PW.12 Ramesh B.R. CW.17 29-09-2015
PW.13 S.M.Chandrappa CW.16 18-11-2015
PW.14 K.Karthik CW.14 18-11-2015
PW.15 Smt.Nagamma CW.11 14-12-2015
PW.16 Shabbir Khaji CW.18 29-12-2015
PW.17 Chinnaswamy CW.12 19-01-2016
PW.18 R.R.Kalyana Shetty CW.20 19-01-2016
Documents marked for the prosecution:
Ex.P1 Portion of statement of PW.3 18-11-2014
PW.3
Ex.P2 Statement of PW.4 PW.4 05-01-2015
44 S.C.715/2014
Ex.P3 Statement of PW.5 PW.5 05-01-2015
Ex.P4 Complaint PW.6 29-01-2015
Ex.P2(a) Signature of PW.6 PW.6 29-01-2015
Ex.P5 Spot Mahazar PW.6 29-01-2015
Ex.P5(a) Signature of PW.6 PW.6 29-01-2015
Ex.P6 Statement of PW.7 PW.7 22-07-2015
Ex.P7 Statement of PW.8 PW.8 22-07-2015
Ex.P8 Statement of PW.9 PW.9 22-07-2015
Ex.P9 Statement of PW.10 PW.10 22-07-2015
Ex.P10 Wound Certificate PW.11 29-09-2015
Ex.P11 FUR PW.13 18-11-2015
Ex.P11(a) Signature of PW.13 PW.13 18-11-2015
Ex.P12 Report of PW.13 PW.13 18-11-2015
Ex.P13 Statement of PW.15 PW.15 14-12-2015
Ex.P14 Statement of PW.17 PW.17 19-01-2016
Material objects marked for the prosecution:
MO.1, 2 Size Stones PW.1 18-11-2014 Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.