Bangalore District Court
(Represented By The Learned Senior App) vs Under Section 313 Of Cr.P.C on 24 August, 2021
1 CC 13398 of 2015
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 24th DAY OF AUGUST 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 13398 OF 2015
BETWEEN
1.STATE represented by Bellanduru Police. ....COMPLAINANT (Represented by the learned Senior APP) AND
1. SUNIL KUMAR.V S/o Venkataswamy Reddy.A, Aged about 35 years, R/o No.494, 4th Cross, Bellanduru, Bengaluru03.
2. VENKATASWAMY REDDY.A S/o Annaiah Reddy, Aged about 71 years, R/o No.494, 4th Cross, Bellanduru, Bengaluru03.
3. L.JAYACHANDRA S/o Lingareddy, Aged about 56 years, R/o No.493, 4th Cross, Bellanduru, Bengaluru03.
....ACCUSED (Represented by Sri.R.Srinivas., Advocate) 2 CC 13398 of 2015 THE BELLANDURU POLICE HAVE CHARGE SHEETED THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 323, 324, 354, 504, 506 R/w SECTION 34 of IPC.
AFTER COMPLETION OF ADJUDICATION, THIS CASE COMING ON FOR JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING...
Offences alleged u/s : 448, 323 324, 354, 504
506 R/w Section 34 of IPC
Charge sheet filed on : 05012015
Trial commenced on : 21012017
Trial completed on : 06032020
Judgment date : 24082021
Total duration : DaysMonths Years
19 07 06
[ JUDGMENT
1. Case of the prosecution is as under; It is alleged that the accused Nos.1 to 3 and the PW1 and 4 are neighbors. Both PW1 and 4 live in a house bearing its No.92/7 of Bellanduru village, Bengaluru. The house property of these accused Nos.1 to 3 is situated just beside the said house of PW1. These accused used to dump wastes in front of the house of PW1 everyday. On 05/12/2014, at 3 CC 13398 of 2015 about 7.30 p.m., PW1 has adviced the accused not to dump such wastes in front of her house and informed them that they emanate foul smell. But, these accused trespassed inside the house of PW1. They scolded them using filthy language. Accused No.1 assaulted s PW1 with his bare hands on her chest portion and he insulted her. Accused No.3 assaulted PW4 using his bare hands. Both PW2 and PW3 tried to pacify them. Accused No.2 took a stick and assaulted them in association with accused No.1. Thus both of them suffered blood injuries. Further these accused have put life threat upon them as well.
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.
4 CC 13398 of 2015
3. This court took the cognizance of the offences punishable under sections 448, 323, 324, 354, 504, 506 R/w Section 34 of IPC. As per the directions of the court, CC.No.13398/2015 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.
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 they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses of the prosecution.
5. As could be seen from the order sheet, prosecution has examined PW1 to PW5 in total and it relies 5 CC 13398 of 2015 upon Ex.P1 and 2. Further as could be seen from the order sheet, despite repeated chances, despite proclamation, prosecution failed to bring both CW3 and 7 to the court for examination. Accordingly considering the number of chances which had been granted to the prosecution to examine them, age of the matter, this court has dropped both of them and posted the matter for recording of a statement of accused under section 313 of Cr.P.C.,
6. After recording of a statement of these accused under section 313 of Cr.P.C., accused did not choose to adduce evidence in support of their defence and in the course of recording of said statement, they denied incriminating circumstances explained to them2.
7. Heard the learned Sr.APP.
6 CC 13398 of 2015
8. Heard the learned counsel for accused. It is apt to note that the learned advocate for accused has submitted written arguments as well.
9. Defence of accused is as follows; Accused Nos.1 to 3 contended that these PW1, PW2 to 4 being the brothers and father respectively of PW 1, They dump wastes and garbages in front of the road and the same emanate foul smell. These accused complained against their acts, to the corporation concerned. Keeping the same in mind, these PW1 and PW2 to 4 have submitted a case alleging false aspects.
10. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that on 05/12/2014 at about 7.30 p.m., to the house No.92/7 where PW1 lives with PW4, as she advised these accused not to put wastes in front of her house as they emanate foul 7 CC 13398 of 2015 smell etc, being offended against those advices, these accused trespassed inside her house and they assaulted these PW1, 2 to 4 and thereby their acts constitute an offence which is punishable under section 448 of IPC R/w Section 34 of IPC ?
2) Whether the prosecution further proves beyond all reasonable doubt that on the aforementioned date, time and place and keeping aforementioned aspect in the mind, these accused trespassed inside the house of PW1 and assaulted both PW1 and 4 using their bare hands and the same has put those PW1 to 4 to suffrage. Thereby these accused have committed the offence punishable under section 323 of IPC R/w Section 34 of IPC ?
3) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place, in the backdrop of the aforementioned incident, when these accused Nos.1 to 3 indulged themselves in assaulting PW1 and PW4, these PW2 and 3 tried to pacify them but both accused Nos.1 and 2 took a stick and assaulted both PW2 and 3 and they suffered blood injuries and accordingly their acts constitute an offence punishable under section 324 of IPC R/w Section 34 of IPC ?
8 CC 13398 of 2015
4) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place these accused have trespassed inside the house of PW1 and picked up a quarrel and assaulted them and they scolded both of them using filthy language with an intention to insult them knowingly well that their insult would provoke to breach the public peace and also to commit other offences etc, and thereby they have committed an offence punishable under section 504 of IPC R/w Section 34 of IPC ?
5) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place, after committing the aforementioned acts against PW1 to 4, all accused have put the life threat upon them by asserting that they would teach them a lesson and would show them their path etc, and thereby they have committed an offence called criminal intimidation, which is punishable under section 506 of IPC R/w Section 34 of IPC ?
6) Whether the prosecution further proves beyond reasonable doubt that, on the aforementioned date, time and place, in 9 CC 13398 of 2015 the said backdrop these accused picked up a quarrel with PW1 and PW4 and they started assaulting them using bare hands and in the course of their assault accused No.1 used a criminal force against PW1 knowingly well that she is a woman and he had in his knowledge that his act of beating her in his bare hands upon her chest portion would outrage her modesty and he intended to outrage her modesty as well and all accused knowingly well have assaulted on both PW1 and 4 though they are women and their act would constitute an offence punishable under section 354 of IPC R/w Section 34 of IPC ?
7) what order ?
11. Above points are answered as under; Point no.01 : In the Negative Point no.02 : In the Affirmative Point nos.03 to 5 : In the Negative Point no.06 : In the Affirmative Point no.07: As per final orders for the following reasons...;
10 CC 13398 of 2015 REASONS The burden to prove the entire case beyond all reasonable doubt, which has been alleged against these accused, heavily lies upon the prosecution and the prosecution is expected in law to prove the acts alleged against accused. This court has taken up aforementioned points for determination one by one for the purpose of convenience and for the purpose of brevity.
12. Point No.01; The prosecution shall prove that the accused have trespassed inside the house property of PW1. The case is based upon the evidence of PW1 to 4. All PW1 to 4 are eyewitnesses as per the version of the prosecution. All PW1 to 4 have deposed in the course of their examination in chief that they also have suffered assault at the instance of these accused, inside the house of PW1. These PW2 and 3 have specifically 11 CC 13398 of 2015 deposed that when accused indulged thems in an act of assault of PW1 and 4, they had been inside the house of PW1 and tried to pacify them and but, in turn, these accused have assaulted them as well and they have aggravated the whole incident.
13. Be that as it may be, so far as the accusation touching section 448 of IPC is concerned, the evidence of these PW1 to 4 is very clear as all of them have deposed that they entered inside the house of PW1 when she adviced these accused not to dump any waste in front of her house etc. PW1 has deposed straight away regarding the assault and she does not depose clearly in her evidence as to in which place exactly she suffered the alleged assault at the instance of these accused. She has deposed only that at about 6.30 p.m., on 05/12/2014, accused questioned her as to who has dumped wastes etc, they have assaulted her, her brother and PW2 to 4 12 CC 13398 of 2015 as well, they kicked them etc. But her evidence is completely silent as to an accusation present in the case regarding trespass.
14. Even in her cross examination, though many answers have been taken from her instance regarding the totality of the incident, no incriminating substance is forthcoming so far as an accusation punishable under section 448 of IPC.
15. As could be seen from the evidence of PW2, it is clear that PW2 is the younger brother of PW1 and he has clearly deposed that the quarrel between accused and them, took place in the backdrop of alleged dumping of waste near the house of PW1 and he had been near the house of PW1 during the incident and accused threatened him and assaulted him etc. But he also has not whispered a single word regarding the accusation which would touch section 13 CC 13398 of 2015 448 of IPC. As could be seen from his cross examination, similar set of questions regarding time and date of alleged incident has been put forward. But nothing much is clear so far as the offence punishable under section 448 of IPC.
16. As could be seen from the evidence of PW3, it is clear that he is also a younger brother of PW1. He deposed that accused are their neighbors. As there were some inconveniences in respect to management of wastes, they indulged themselves in a cleaning work of the passage where the gunny bags filled with wastes were kept and his evidence indicates that the incident alleged by the prosecution had taken place in that passage area. As per the evidence of PW3 he also has suffered assault in the said incident because of the alleged acts of the accused. But, in no way in his evidence it is clear that whether the accused has trespassed inside the house premises of PW1 or not. 14 CC 13398 of 2015
17. As could be seen from the evidence of PW4, it is clear that he is the father of PW1, 3 and 5. It is clear from his evidence that accused are their neighbors. He alone has deposed in this case regarding the alleged act called as "trespass" allegedly committed by accused herein. He has clearly deposed that these accused had rushed inside the house of PW1 after breaking the door and thereafter they assaulted them, hence they suffered injuries etc.
18. As could be seen from his cross examination, though few questions have been put upon him regarding the location of their houses and other activities etc, learned counsel appearing for accused failed to dismantle his evidence adduced in the court regarding the case alleged as to an offence punishable under section 448 of IPC. No suggestions regarding trespass and no specific question which would atleast remotely or indirectly dismantle the 15 CC 13398 of 2015 evidence adduced by him regarding the case as to trespass. His evidence, therefore, remained intact more specifically regarding an accusation leveled against these accused as to trespass.
19. PW5 is none other than the PSI. He deposed that he has done an investigation in this matter. As a matter of investigation he did draw mahazar and recorded the statements of concerned witnesses in the matter and ultimately, he has submitted a charge sheet to the court opining that accused have committed the offences aforementioned.
20. Now it is clear before this court that Ex.P1 is the first information and Ex.P2 is the spot mahazar. I have carefully gone through Ex.P1First information and the Ex.P2the Spot mahazar as well. First information Ex.P1 specifies that it has been alleged by PW1 that they were inside their house on 16 CC 13398 of 2015 05/12/2014. All of a sudden, they trespassed inside their house and they tried to outrage the modesty of these women present there of etc. Wherein, Ex.P2 the Spot Mahazar specifies that the mahazar has been drawn in the place showed by PW 1 and PW2. It further specifies that the stick has been recovered inside the house and it is an eucalyptus tree stick. But regarding the sign of entry of these accused, nothing has been stated as to whether it was available or not as on the time of mahazar. Whether any other articles were damaged inside the house or not also has not been narrated properly. Though the schedule regarding the exact location of the house of PW1 has been shown, specific place where the alleged incident took place, has been described at all. So far as the offence punishable under section 448 of IPC is concerned, Ex.P2 is silent.
17 CC 13398 of 2015
21. Though PW4 in his evidence has deposed that the accused have rushed inside the house of PW1 and they have broken the door of the said house etc, he has not deposed whether any substantial damage was done on the said door and also about whether they could able to resist their entry inside the house or not. Moreover even if the aforesaid aspect is ignored, still the evidence of PW4 can be isolated, because, the PW1, according to the case of the prosecution, is the person who has been directly affected at the instance of accused in the above incident. But she only has failed to narrate in the court during her examination in chief as to in what way the trespass did happen at the instance of accused. Whether any damage has taken place in the course of their trespass also has not been stated by her. Except PW4, none of the witnesses has deposed regarding the case alleged against accused as to trespass.
18 CC 13398 of 2015
22. It is no doubt true that PW4 is an eyewitness to the incident. It is no doubt true that he has deposed specifically that accused did trespass inside the house property of PW1 and committed the aforementioned offences. But still he did not depose as to how many of them have entered their house premises and in what way the incident went up to an extent of assault. Be that as it may be, so far as accusation as to the offence punishable under section 448 of IPC is concerned, it is the mandate of section 448 of IPC that if any person commits house trespass shall be punished and what is house trespass has been described in section 442 of IPC. Section 442 of IPC makes it clear that if somebody enters into or remain in any building, tent or vessel, house for home dwelling or any building used for the purpose of worship or a place to have the custody upon the property and if any act of entering inside such place 19 CC 13398 of 2015 house etc, is proved, then it suffices to say that it constitutes an offence called house trespass. For the purpose of clarity, both section 442 of IPC and section 448 of IPC are extracted herein below; Section 442 in The Indian Penal Code.
442: House trespass. --Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "housetrespass".
Section 448 in The Indian Penal Code.
448. Punishment for housetrespass. -- Whoever commits housetrespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
23. Taking into consideration the ingredients of above sections it is clear that the entry of accused 20 CC 13398 of 2015 should be proved beyond reasonable doubt by the prosecution herein, with respect to the house property of PW1. Though PW4 has deposed that the accused has broken the door and they have entered the house property of PW1, none of the above witnesses has deposed regarding the entry of accused. Though it is alleged that they have entered the said house and committed the said crime, at that point of time, how they went out and who ensured their exit from their house etc, have been left unanswered by the prosecution. As there is no specific suggestion in the cross examination of PW4 regarding the accusation as to trespass, the evidence on the whole adduced by PW4, so far as the trespass is concerned, has remained undisturbed. But still it is highly not convincing. Because his evidence is not corroborated with the contents of Ex.P2the spot Mahazar. When the PW1 herself has failed to adduce evidence as to trespass, when the mahazar itself does 21 CC 13398 of 2015 not speak anything as to signs of trespass. Although Ex.P2 is clear as to seizure of a stick still as it is silent and not convincing regarding the seizure of a stick to an effect that it has been made inside the said house, it is the opinion of the court that evidence is not convincing. It only specifies that the accused after the incident did throw the stick thereof and the same has been seized etc. Whether exactly inside that house the said stick was lying or not is not clear as per Ex.P2. Therefore, the evidence of PW4 so far as the case as to trespass is concerned, it is not convincing and it does not prove the case alleged against the accused as to trespass.
24. Suffice it to say that none of the witnesses has deposed regarding the entry of accused inside the house of PW1. One of the important and foremost ingredient of section 442 of IPC is the entry of accused. As aforementioned none of the prosecution 22 CC 13398 of 2015 witnesses has deposed about the entry of accused inside the house premises of PW1. Moreover it is not the case of the prosecution that other independent witnesses are available to depose regarding the entry of accused inside the house of PW1 and also as to their exit. Therefore, though the learned advocate appearing for accused has argued and has submitted written arguments contending that the above witnesses, who are eyewitnesses as per the prosecution are interested witnesses and they are closely related etc, even if the said aspects are overlooked or ignored, still the prosecution is expected to stand on its own feet and it should have proved the case beyond reasonable doubt. Therefore, the evidence of PW4 for the foregoing reasons appears to be incomplete and thus the question aforementioned is hereby answered in the Negative. 23 CC 13398 of 2015
25. Point No.02; The evidence of all these eyewitnesses is very specific on one thing that in the backdrop of their difference regarding the dumping of waste in the passage, accused have assaulted them and they suffered injuries and obtained treatment etc. Though the prosecution has not proved the aspect of trespass, the evidence of all these eyewitnesses cannot be brushed aside and straight away disbelieved on the point of assault only for the reason that the accusation regarding trespass has not been proved by the prosecution. Because that reason, by itself, does not put the entire case of the prosecution to dark. Because though the prosecution witnesses have failed to adduce evidence as to trespass, still, as aforesaid, they are consistent in deposing regarding the assault. All the witnesses have deposed without giving any scope for ambiguity that near the house of PW1, in the backdrop of a difference as to dumping of wastes in gunny bags, in the passage, the incident 24 CC 13398 of 2015 took place and they suffered assault at the instance of these accused. PW1 is very specific in deposing that accused have picked up a quarrel with respect to dumping of wastes and they assaulted her and her brothers. Wherein, PW2 has also deposed that in the backdrop of the said aspect, these accused have assaulted PW1 and them with bare hands etc.
26. Further PW3 is also specific in deposing that there is a place available near by the house of PW1 and with respect to placing of wastes in gunny bags, the incident took place and these accused have assaulted PW1 and them as well and also upon PW 2 and 4. They suffered injuries etc. Further PW4 is also consistent in deposing that these accused have picked up a quarrel with PW1 and assaulted them.
27. Even in the cross examination of these witnesses, learned advocate appearing for the accused 25 CC 13398 of 2015 did not dispute the point as to their difference allegedly existing in the backdrop of dumping of wastes. But it is their defence that the prosecution witnesses were in a habit of dumping waste and it was complained with the corporation and keeping that aspect in mind, these prosecution witnesses have turned the entire case against them etc.
28. In the cross examination of these witnesses, what could be seen is only a question denying the very incident by way of blanket suggestion and at the same time, learned advocate appearing for accused has suggested all these witnesses that, they have not dumped the waste and they have filed the complaint to the corporation. Further what has been suggested is, as no alleged incident took place, no complaint also has been filed on the same day of the incident alleged. Even in the written arguments submitted by the learned advocate appearing for the 26 CC 13398 of 2015 accused, it is stated that there is a delay in setting the law into motion. Though the alleged incident took place at about 7.30 p.m., of 05/12/2014, FIR has been registered on 06/12/2014 at about 1.45 p.m. This length of delay has not been explained convincingly etc.
29. Although the learned advocate in his written arguments has been contended that no medical evidence has been adduced in the court to substantiate the injuries and to explain the injuries and to prove the assault no evidence has been adduced hence the whole incident shall be disbelieved etc. But it is not the defence of the accused that the incident itself has not been taken place or otherwise. In the cross examination of all these witnesses, what could be seen is only a suggestion by way of blanket suggestion denying the occurrence of the very incident.
27 CC 13398 of 2015
30. Therefore, this court is of the opinion to state that the mere blanket suggestion denying the very incident, by itself, does not take away the strength of the case of the prosecution. Particularly, in the case on hand, as it is the defence of the accused that as the accused were in the habit of ensuring cleanliness of the passage, these prosecution witnesses who were putting the wastes in that area, the same was complained to the concerned corporation and being offended against the said complaint, present case has been filed etc, One thing is clear that the relationship between these persons has been strained despite they being neighbors. On the basis of the cross examination suggestions and on the basis of the nature of the evidence adduced by the prosecution, this court has no hesitation to state that the relationship between prosecution witnesses and accused is not intact and it has been strained. 28 CC 13398 of 2015
31. In so far as the aspect of an assault is concerned, except the blanket suggestion from the learned advocate for accused, no specific suggestion has been put which would take away the strength of the evidence of these witnesses regarding the case as to assault. Whether the injury allegedly suffered by these witnesses are severe or simple, it is altogether a different matter. But whether they suffered assault or not is the aspect to be ascertained with the help of available evidence. But on the basis of the evidence of the prosecution witnesses and after considering the nature of defence of the accused and also the questions put forward upon them in the course of their cross examinations respectively, it is clear that, in the backdrop of their strained relationship, they have fought.
32. Availability of the said passage is not in dispute. Dumping of wastes in the passage cannot be 29 CC 13398 of 2015 disputed. Because one side accuses the other side in this case asserting that they are in a habit of dumping wastes in the available passage which according to them emanates foul smell etc. Therefore, the presence of wastes in the area available can be believed. Taking into consideration the nature of the defence and the foregoing aspects what is clear is there was a fight and in the fight these witnesses have suffered some blows. This court has come to the above conclusion, because, in the cross examination of PW1, the learned advocate appearing for the accused has suggested that they have not assaulted any of the prosecution witnesses. At the same time the prosecution also has not adduced any convincing evidence to prove the specific nature of assault and the investigation also has been done in a very callous manner by the IO. It was the duty of the investigation officer to ascertain as to who provoked other side which ultimately resulted in the alleged incident. 30 CC 13398 of 2015 Atleast IO should have explained in the court as to who assaulted first amongst two sides and also as to who tried to safeguard themselves from such assaults. Hence as it is the case of the prosecution that these accused had been near the house property of PW1, as the said aspect has not been disputed by the accused either in the trial or during arguments, the presence of those accused near the house though not inside the house of PW1, can be believed and it appears to be very probable as to their presence near the house of PW1. Because their presence in the incident has not been disputed. But nebulously, has been admitted that the prosecution witnesses only have dumped wastes. Hence, the presence of these accused can be believed particularly at the time of alleged incident near the placed alleged and taking into consideration the nature of the cross examinations suggestions and the defence put forward, the very incident can be believed. 31 CC 13398 of 2015
33. Hence, the act of causing bodily hurt can also be believed. Because of the presence of these accused near the house of PW1, particularly at the time of alleged incident, being shown to be probable for the foregoing reasons, this court has come to the conclusion that they themselves have inflicted the pain to prosecution witnesses by way of simple hurt as the reason for their presence at the spot alleged being not explained satisfactorily. Though the learned advocate appearing for accused has disputed the assault and trespass, he did not dispute in his cross examinations the presence of these accused near the house of PW1.
34. Therefore, this court has no hesitation to state that the burden of proving the presence of these accused near the house of PW1 during the alleged incident, has been discharged by the prosecution. Once that burden is being discharged, for the 32 CC 13398 of 2015 foregoing reasons, the onus would certainly stay upon these accused to show convincingly before the court as to why they had been near the house of PW1. Being her neighbors that by itself does not entitle these accused to stay present near her house. The onus to prove their necessity to be present near the said house has not been discharged by these accused. Therefore, in view of there being no specific defence of accused at all regarding the assault and also for all the foregoing reasons, the case as to assault shall necessarily be believed. Therefore, there appears an intention of these accused to cause hurt to those prosecution witnesses in the said backdrop and this court has no hesitation to state that their act amounts to a voluntary act of causing hurt and inspite of absence of medical evidence, the pain suffered due to simple hurt, by these witnesses can be believed to have been suffered at the instance of accused.
33 CC 13398 of 2015
35. Hence, for the purpose of clarity Sections 321 and 323 are extracted herein below;
Section 321 in The Indian Penal Code. 321: Voluntarily causing hurt. --
Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 323 in The Indian Penal Code.
323. Punishment for voluntarily causing hurt. --Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
For the foregoing reasons Point No.2 is answered in the Affirmative.
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36. Point No.03; So far as the case alleged as to an offence punishable under section 324 of IPC is concerned, yet again it is needless to state that the prosecution shall prove the case beyond reasonable doubt that the accused have voluntarily caused hurt to PW1 to 4 by way of using dangerous weapon or by any other means.
37. The specific case of the prosecution is that when these accused Nos.1 and 3 indulged themselves in an assault on these PW1 and 4, the PW2 and 3 had been to the spot and they tried to pacify. But accused Nos.1 and 2 in association with accused No.3 have assaulted all PW1 to 4 using a stick and they suffered blood injuries etc.
38. Prosecution has relied upon the charge sheet materials. The charge sheet materials, are inclusive 35 CC 13398 of 2015 of the wound certificates issued by the Doctor attached to Lake View hospital, Agara, Bengaluru. They pertain to PW1 to 4 and 6. They specify that blunt injury has been suffered together with swelling on chest portion by PW1 and 4. They further specify that chest Xray also has been done upon PW1 and PW2. But the thing is that, prosecution did not show any interest to examine the person, one who has issued such certificates. Charge sheet does disclose the name of one Dr.Suguna of Lake View hospital as CW7. But as aforesaid, CW7 has been dropped at the instance of prosecution only. Because inspite of repeated proclamations, repeated issuance of warrants and summons, prosecution failed to examine the witnessCW7. Hence as aforesaid, the said doctor came to be dropped.
39. Though wound certificates are the part of the report of IO in this case which came to be submitted 36 CC 13398 of 2015 with said report under section 173 of Cr.P.C, still for want of marking and for want of evidential importance inspite of presence of those wound certificates, this court cannot consider them. However it is settled in law that the evidence of doctor will be useful for the court to ascertain whether the injuries described in such wound certificates have been suffered by the concerned witnesses in the manner alleged by the prosecution. In the present case on hand, though the prosecution has alleged that these accused have assaulted them using the stick and they suffered injuries etc, still the evidence is silent as to what kind of injury that they have suffered at the instance of accused in the incident.
40. Considering the nature of the case on hand, this court opines that the examination of doctor, should have been done by the prosecution to show before the court that the injuries alleged to have been 37 CC 13398 of 2015 suffered by PW1 to 4 have been suffered in the manner alleged by the prosecution. Moreover the stick alleged to have been used by the accused, although it has been marked in the course of trial, it does not suffice. Therefore, although PW1 to 4 are consistent in deposing before the court as to use of said stick, in view of absence of evidence regarding the nature of injury, though use of stick has been believed the nature of injury cannot be believed. The nature of injuries suffered allegedly, it being not proved, as this is a case alleged against accused as to an offence punishable under section 324 of IPC, it would go to the root of the matter.
41. In a case of state of Madhya Pradesh V/s Mishrilal(Dead) and others (2003 SCC CRL 1829) Hon'ble Apex court has held that The omission on the part of the prosecution to explain injuries on the person, assumes greater importance, if 38 CC 13398 of 2015 such evidence consists of interested and inimical witnesses or where the defence gives the version which competes in probability with that of the prosecution.
42. In the case on hand, this court feels that the ratio laid down by Hon'ble Supreme Court would squarely to be made applicable. Because in the case on hand also it has been argued that all these witnesses are interested witnesses and they have an intention to ensure the punishment against these accused. Though, they have dumped the wastes near the house of PW1, now they want punishment to be imposed on these accused. In the case on hand, the accused have taken a defence that the prosecution witnesses only have put the wastes in the passage area, therefore, there was a complaint which came to be filed before corporation against these witnesses etc. 39 CC 13398 of 2015
43. When such being the case, it is clear before this court that there is a dispute between these parties in the backdrop of dumping of the wastes. Therefore, as there is a dispute between these parties, as it is existing much prior to the date of registration of this case itself the prosecution should have applied due care in investigation and also during the adjudication of the case. But prosecution neither ensured proper investigation nor adduced proper evidence to show before the court as to who is the aggressor and as to nature of injuries. The prosecution should have applied due care in ensuring the procurement of a doctor for examination, who issued those certificates. If the injuries alleged to have been suffered by these witnesses would have been explained by the prosecution with convincing explanation, with the backup of proper evidence then in such an event, the court could have believed a case as to the injuries. 40 CC 13398 of 2015
44. The supreme court has made a position of law very clear, that if the witnesses examined by the prosecution would adduce evidence in such a way that such evidence would prove the case beyond reasonable doubt, then the question of obligation of prosecution to explain injuries does not arise.
45. But in the case on hand, the relationship between the parties being highly strained, from the period much prior to the registration of this case itself, as the witnesses are of the same family and in view of witnesses who can depose as to nature of injury being not examined by the prosecution, the case as to the injuries cannot be believed and what can be believed is an assault simplicitor, for the reasons stated herein above while explaining the case with regard to section 323 of IPC.
41 CC 13398 of 2015
46. Therefore, in the absence of evidence regarding the nature of injuries, the Point No.3 shall be answered in the Negative. Because section 324 of IPC makes it clear that, if any instrument is used for the purpose of causing hurt in any way including by way of shooting, stabbing or by using such instruments as a weapons which are of such nature that, which are likely to cause death including fire and heated substance etc, then such aspect can be termed as a dangerous weapon. But in the case on hand, Stick has been alleged to have been used. Though with the help of MO.No.1 the use of stick can be believed, still there is nothing on record to believe that these prosecution witnesses have suffered hurt of such nature at the instance of accused, particularly in the way explained above.
47. Therefore, considering the ratio laid down by Hon'ble Supreme Court regarding the importance of 42 CC 13398 of 2015 medical evidence and also the ratio being laid down by the Hon'ble Supreme court in the case below that medical evidence can be used to ascertain whether the injuries suffered by the victims have been suffered in the manner alleged by the prosecution, this court opines that the prosecution has failed to prove the injuries.
48. In a case between Vijay Pal V/s State of Delhi reported in 2015(3) KCCR SN 229 what has been held is " Medical evidence shall be used for the purpose of corroboration and to prove the injuries could possible have been caused in the manner alleged by the prosecution and the medical evidence can be used by the defence to make a defence to prove that the injuries could possibly have been caused in a manner alleged"
49. In another case, Hon'ble Supreme Court has made it clear that in case of absence of explanation as to injuries, court has to disbelieve case as to 43 CC 13398 of 2015 injuries . What has been made clear is if the injuries are not explained properly, if such injuries are alleged to be serious then in the absence of such explanation as to injury, the court shall draw a conclusion that the prosecution has failed to establish its case as to such injuries. The case is cited herein below; Raghunath V/s State of Haryana (2003 (1) Crime 260 (SC)), it has been held that ;
"The non explanation of injuries on accused person, which are of serious nature, would lead to the conclusion that the prosecution has failed to establish its case, suppressing the real facts."
50. In view of the failure of the prosecution to explain the injuries properly and for the foregoing reasons, this court is of the opinion to draw adverse inference against the prosecution regarding the case alleged on accused as to infliction of pain by causing alleged injuries. It is again apt to say that when the prosecution would assert that, at the instance of the 44 CC 13398 of 2015 accused, few persons have suffered injuries in an incident alleged, in such an event it is the foremost duty of the prosecution atleast to explain before the court regarding nature of injury and to adduce evidence which would substantiate the case to the said effect. Though IO has submitted his report as to investigation under section 173 of Cr.P.C., together with few wound certificates depictingly issued by CW 7 herein, mere production by itself does not establish the contents of the same. Hence, taking into consideration the facts and circumstances of the case on hand, this court has no hesitation to say that failure of the prosecution to ensure marking of wound certificates during the course of trial and failure to examine CW7, both have disturbed the case of the prosecution regarding the nature of injuries. Considering the insufficiency of evidence, as to nature of injuries, the Point No.3 is answered in the Negative.
45 CC 13398 of 2015
51. Point No.04; So far as the accusation leveled against these accused with respect to an offence punishable under section 504 of IPC is concerned, it is needless to state that the prosecution should have proved that, intentionally, the accused have insulted these witnesses and also have given these witnesses a provocation intending and knowingly well that such insult would provoke these witnesses and would cause them to break the public peace or to commit any other offence etc.
52. For the purpose of clarity Section 504 of IPC is hereby extracted below;
Section 504 in The Indian Penal Code.
504. 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 46 CC 13398 of 2015 imprisonment of either description for a term which may extend to two years, or with
53. This is the case being proved to have taken place between these parties in the backdrop of their strained relationship with respect to dumping of wastes in a passage available near their respective houses and prosecution has clearly alleged that inside the house of PW1, these accused have insulted these witnesses using filthy language and accordingly they have committed the said offence.
54. But none of the witnesses has deposed amongst these witnesses as to the offence punishable under section 504 of IPC. The evidence of all these witnesses is consistent only with respect to an assault but not on other things. As these witnesses have failed to depose anything as to the offence punishable under section 504 of IPC, there is nothing on record to 47 CC 13398 of 2015 believe that these accused have committed the offence punishable under section 504 of IPC.
55. Therefore, in view of the evidence being silent regarding intentional insult and provocation coupled with knowledge to the effect that such provocation would promote the breach of public peace or to commit any other offence etc, it is needless to state that the case to said effect has become weak. The evidence of the prosecution adduced in the court does not show any ingredients contemplated under section 504 of IPC. Hence, for want of evidence Point No.4 is answered in the Negative.
56. Point No.05; Question before this court is whether the prosecution has proved that the accused herein have criminally intimidated these witnesses in the manner alleged. None of the witnesses have deposed regarding any threat allegedly imposed by 48 CC 13398 of 2015 the accused on them. They have clearly deposed about the assault but not on criminal intimidation. All these witnesses have deposed in the course of their respective examinations in chief except PW2 that they have suffered assaults at the instance of accused. But they have not deposed anything regarding the alleged threat as to their life etc. But PW2 alone has deposed that these accused have put threat as to their life. The cross examination of PW2 does not specify any single question regarding the alleged threat, therefore, the evidence of PW2 remained intact. Though the evidence of other witnesses is silent regarding the aspect of criminal intimidation, the evidence of PW2 alone would some how throw the light as to allegations present with respect to criminal intimidation. But it is deposed only that the life threat has been put on him. Mere adducing in a blanket way the evidence that he suffered the life threat, same does not suffice to say 49 CC 13398 of 2015 that there was a criminal intimidation. It shall be explained as to in what way the threat has been put and how it has intimidated. But in the absence of clear evidence as to intimidation this case cannot be believed inspite of evidence of PW2 as to criminal intimidation. Therefore for want of evidence this point shall be answered in the negative.
57. For the purpose of clarity Section 506 of IPC is extracted herein below;
Section 506 in The Indian Penal Code.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment 50 CC 13398 of 2015 of either description for a term which may extend to seven years, or with fine, or with both.
58. Point No.06; Section 354 of IPC is very clear to the effect that the prosecution shall prove that the accused herein have used criminal force against PW1 and 4 although they are woman, in the backdrop of said sort of enmity because of dumping of wastes and accused intended to outrage modesty by way of using criminal case knowingly well that such assault would outrage their modesty.
59. As aforesaid all the prosecution witnesses are consistent in deposing in the court that these accused have assaulted both PW1 and 4 with their bare hands and when these PW2 and 3 tried to pacify the quarrel these accused took a stick and assaulted all of them. What has been alleged is all these accused assaulted PW1 and 4 using bare hands and stick on the chest portion of both PW1 and 4. 51 CC 13398 of 2015 Though the cross examinations of these witnesses would show some questions regarding the location of their houses, regarding the date and time of incident, FIS which came to be submitted, usage of vehicles and phones etc, except blanket denial by way of suggestion that these accused have not assaulted all these witnesses in the way alleged, nothing is available on record which can dismantle the evidence of those witnesses, more particularly the evidence of PW1 an 4. PW1 is consistent in deposing that she suffered injury as a result of assault made upon her by these accused and she has deposed that she has suffered kicks by these accused as well and PW4 is specific in deposing that she suffered assault at the instance of accused No.1 and accused No.3 on her head, chest and legs. She further narrated in her evidence that she suffered assault at the instance of those accused on her chest and head portion as accused aforementioned have used sticks. 52 CC 13398 of 2015
60. Though many questions have been posed during the cross examinations by the learned advocate appearing for accused, although it has been argued by the learned advocate appearing for the accused and although it has been contended by the learned advocate for accused that these witnesses are interested witnesses and they have deposed false evidence etc. What prevented the learned advocate appearing for accused to cross examine these witnesses, specifically with respect to an offence which is punishable under section 354 of IPC.
61. Though the prosecution has failed to prove the nature of injuries in the court, but the hurt at the outset, which has been suffered by these witnesses has been established by the prosecution. Mere failure of the prosecution to prove the nature of injuries does not disturb the case of the prosecution as the offence 53 CC 13398 of 2015 punishable under section 354 of IPC, has been alleged against accused.
62. As aforesaid the presence of these accused at the spot though no trespass has been believed, for the foregoing reasons, as the presence of these accused has been held to be probable in the facts and circumstances of this matter. Though the accusation as to trespass has been disbelieved, presence of accused has been believed as aforesaid at the alleged spot. The onus of establishing the convincing reason for their presence near the house of PW1 has not been discharged by the accused. When such being the case, in view of suggestions put forward by the learned counsel appearing for the accused on prosecution witnesses in their cross examinations only would indicate before the court that there was an incident as on the date of the alleged incident in the backdrop of their differences existed in respect of 54 CC 13398 of 2015 dumping of wastes in passages, the incident being proved to have occurred as above between these witnesses and these accused. Certainly the court shall believe that the incident has taken place with a knowledge to the members of public of that particular vicinity. Though the prosecution has not examined any independent witnesses, for the specific reason that the incident itself being proved by the prosecution to have been taken place though not in the manner alleged by the prosecution in full, disrespect in the incident being proved to have been metted out against these woman in the backdrop all the foregoing aspects, the case cannot be doubted at all. Section 354 of IPC makes it clear that usage of criminal force to any woman with an intention to outrage her modesty knowingly well that such force would outrage her modesty, etc, are established, then the court cannot adopt a technical approach to ask the prosecution that to what extent, her modesty 55 CC 13398 of 2015 has been outraged and in what way her reputation has been put to distress etc.
63. Now the court shall confine to examine as to whether the prosecution is able to prove the usage of criminal force against these PW1 and 4.
64. For the purpose of clarity Section 354 of IPC is extracted herein below;
65. Section 354 in The Indian Penal Code
354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
66. While examining the said aspect, in view of totality of the incident being not disputed by the 56 CC 13398 of 2015 accused, as it is their case that they only have complained to Corporation against these accused, as aforesaid the strained relationship between these parties can certainly be believed though offence called trespass being disbelieved herein. Though this court has not believed the nature of injuries suffered by these witnesses, it does not mean that the case has to be viewed lightly. The concept of outraging of a modesty of a woman, shall be placed on a different pedestal. The aspect as to trespass, threat and nature of injury would stand completely different when it comes to the concept of outraging of a modesty of a woman.
67. The whole incident, in the light of nature of questions put forward to the witnesses of the prosecution by the learned advocate appearing for the accused, cannot be doubted. What is clear before this court is, their strained relationship. Considering the 57 CC 13398 of 2015 nature of defence of accused aforementioned, there is certainly a dispute between these parties regarding dumping of wastes. Presence of these accused near the house of PW1 shall necessarily be believed for foregoing reasons. The onus aforementioned has not been discharged by these accused. Suffice it to say that if at all there is a dispute between these parties regarding dumping of waste, the parties should have got their dispute redressed in the manner known to the law. But why these accused altogether were present near the house of PW1 and 4 should have been properly established. Hence in view of these PW1 and PW4 being nearest relatives, as there is a preexisting dispute between these parties in the said regard, keeping in mind the nature of cross examination done upon them, their presence in the incident that too in the place alleged, appears to be so probable as aforesaid. Hence their evidence regarding usage of criminal force against these woman can be 58 CC 13398 of 2015 believed. Though the nature of injury has not been explained by the prosecution, it does not mean that there has been no infliction of criminal force. In view of assault simplicitor being established to have been suffered by PW1 and 4, that hurt simplicitor itself is sufficient to hold that there has been an use of criminal force against these woman at the instance of accused.
68. Therefore, in view of the defence of the accused put forward before the court as above, is being very bald, as the very preexisting rivalry, use of criminal force, hurt simplicitor being proved by the prosecution to have been inflicted at the instance of accused against these PW1 and 4, case as to the offence called "outraging modesty" of this PW1 and PW4 shall be believed only. Hence the act of inflicting hurt simplicitor on PW1 and 4, itself has established the ingredients present in section 354 of 59 CC 13398 of 2015 IPC to the effect that such force has been used by these accused against PW1 and 4. There is no impediment for this court for the foregoing to say that the prosecution is successful in establishing the case with respect to an offence punishable under section 354 of IPC against accused. Hence Point NO.5 is answered in the Affirmative.
69. Point No.07; Taking into consideration the aforementioned aspects, inspite of the written arguments being submitted to the court contending the aspects as to the delay in filing FIS and absence of medical evidence etc, necessity being attributed on all the prosecution witnesses, still for the reasons discussed herein above, the offences punishable under sections 323 and 354 of IPC have been proved and at the same time for the reasons discussed herein above, the offences punishable under sections 448, 324, 504, 506 R/w Section 34 of IPC are concerned, 60 CC 13398 of 2015 the prosecution has failed to establish them. This court relies on a judgment of Hon'ble Supreme Court which says that delay in filing FIS is not a fatal to the case. i.e., on the judgment of Hon'ble Supreme Court delivered in a case of Ombir Singh V/s State of Uttar Pradesh and another. In the above case, it has been clearly held that ;
Non compliance of section 157 of Cr.P.C, itself it is not a ground to seek the acquittal. In the said case, the Hon'ble Supreme Court has held that delay in furnishing FIS cannot set a ground for acquittal and Hon'ble Supreme Court has explained the effect of a delay in complying with section 157 of Cr.P.C., and Hon'ble Supreme Court has made it clear that, in every case, mere delay in sending FIR to the Magistrate, it shall not be concluded that such FIR has been registered much later than shown. In the present case on hand, though there is a delay in 61 CC 13398 of 2015 registering the FIS, considering the totality of the case and evidence of the eyewitnesses, as the delay present herein is not too lengthy, as the incident being proved to have taken place at about 7.30 p.m., of 05/12/2014 and the FIS being registered at about 1.45 p.m., of the very subsequent date 06/12/2014 , it cannot said that there is an inordinate delay in registering FIS.
70. So far as the contention as to an interest being allegedly present with all the above witnesses is concerned, this court is of the considered opinion to say that the reasoning made as above would take care of said aspect. Merely being present in a strained relationship, that itself does not take away the credibility of the evidence of the said persons. The surrounding circumstances also shall be considered and this court has considered all the aspects as to defence and cross examination versions and 62 CC 13398 of 2015 therefore this court is of the opinion to say that by pleading their strained relationship, nebulously they admitted the case. This court opines that prosecution has proved the case to the said effect against accused. Therefore, with the above findings accused Nos.1 to 3 are hereby acquitted of the offences punishable under section 448, 324, 504, 506 R/w Section 34 of IPC. Thus, invoking section 248(1) of Cr.P.C., all these accused Nos.1 to 3 are acquitted of the offences punishable under section 448, 324,
504. 506 R/w Section 34 of IPC. But they are hereby held guilty for the offences punishable under section 323, 354 of IPC.
71. This court invokes the provisions of Probation of Offenders Act. Section 3 of Probation of Offenders Act is hereby invoked and all accused, in the facts and circumstances of this case, are required to be admonished and released with respect to the offences 63 CC 13398 of 2015 punishable under section 323 and 354 R/w section 34 of IPC.
72. In view of suffrage in terms of money or in terms of aggravated bodily injury being not proved to have been suffered, this is not a fit case to order for victim compensation. Taking into consideration the fact that all these people are neighbors, any sentence shall not further strain their relationship. Hence this court does not want to impose any fine on these accused and this court is of the opinion i.e., not to recommend any victim compensation. Though PW1 and 4 have been proved to have been suffered on their modesty, still this court opines that the modesty of a woman cannot be compensated in terms of money that too when no aggravated external bodily injury or no grave, reputation loss being proved to have been suffered by them.
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73. With the above orders the present matter shall be concluded. For all the foregoing reasons, considering the societal status of these parties and nature of suffrage proved to have been suffered by these witnesses and the reasons behind such suffrage and strained relationship etc., considering the status of these parties as they are not antisocial elements, I am of the view that this is a fit case to invoke the provisions of Probation of Offenders Act. Moreover the incident being proved to have taken place with respect to their domestic arrangements, although the accused Nos.1 to 3 are held guilty for the offences punishable under sections 323, 354 of IPC, this court does not want to sentence them.
74. For the purpose of clarity Section 3 of Probation of Offenders Act is hereby extracted below; 65 CC 13398 of 2015 Section 3 in The Probation of Offenders Act, 1958 Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 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 4 release him after due admonition. 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.
CONCLUSION Invoking section 248(1) of Cr.P.C, all accused No.1 to 3 are hereby acquitted of the offences 66 CC 13398 of 2015 punishable U/s. 448, 324, 504. 506 R/w Section 34 of IPC.
Accused Nos.1 to 3 are held guilty of the offences punishable under section 323, 354 R/w Section 34 of IPC.
Invoking section 3 of Probation of Offenders Act,1958 accused Nos.1 to 3 are hereby admonished and released after due admonition only for the offences punishable under sections 323, 354 R/w Section 34 of IPC.
Office shall furnish a copy of the above judgment to the accused free of cost forthwith.
The bail bonds and surety bonds of accused Nos.1 to 3, if any, will be in force till completion of appeal period, thereafter they shall stand cancelled. 67 CC 13398 of 2015 MO.1 i.e., Club is hereby directed to be destroyed after the appeal period. (Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 24082021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 68 CC 13398 of 2015 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Padmavathi PW.2 : Ravindra Reddy PW.3 : Nagabhushan Reddy PW.4 : Venkatamma PW.5 : N.T.Lakshmana Gowda List of documents marked on behalf of the Prosecution: Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.1(b) : Signature of PW5 Ex.P.2 : Panchanama Ex.P.2(a) : Signature of PW1 Ex.P.2(b) : Signature of PW5 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL List of materials marked on behalf of accused : MO1 : Club S.S.BHARATH XLI (41ST) ACMM, BENGALURU