Bangalore District Court
State By vs A1. Venkatesh.T. @ Kencha @ Kiran on 30 April, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 30 th day of April, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.1286 of 2014
COMPLAINANT : State by:
High Grounds Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED: A1. Venkatesh.T. @ Kencha @ Kiran.
(Split up in SC.No.1662/2021)
A2. Manjunath,
S/o Muniraju,
Aged about 30 years,
R/at No.321, Sadaranalli Gate,
Doddajala Post, Airport Road,
Bengaluru.
(By Sri.S.Shankarappa, Advocate.)
A3. Vishwas.B.M. @ Baby,
S/o Manjunath,
Aged about 20 years,
R/at No.276, Near Ashwathakatte,
Bettalasuru Grama & Post,
Chikkajala Hobli,
Bengaluru North, Bengaluru.
(By Sri.Hanumanthe Gowda, Advocate .)
DATE OF:
2 SC.No:1286/2014
Occurrence of offence : 13.08.2014
Commencement of trial : 28.06.2019
Closing of trial : 08.04.2022
Name of the complainant : Sri.Suresh Gowda.
Offence alleged : Under Sections 354,
367, 504, 506, 509 and
511 read with
Section 34 of IPC.
Opinion of the judge : Charges leveled
against accused are
not proved.
Sentence or order : Acquittal.
JUDGMENT
The Kengeri police have filed the present charge sheet against the accused in Crime No.233/2014 for the offences punishable under Sections 354, 367, 504, 506, 509 and 511 read with Section 34 of IPC.
2. The brief facts of the prosecution case are that;
a) On 13.08.2014 at about 11:30 p.m., when CW-1/ Sri.Suresh Gowda, CW-4/Smt.Manasa and CW-5/ Smt.Varamahalakshmi were returning after attending a party and reached near Sea Rock Bar and Restaurant, near Shivananda Circle, within the jurisdiction of High Grounds 3 SC.No:1286/2014 police, A-1 to A-3 came in a Tata India Car bearing registration No.KA-04 B-4912.
b) A-1 teased CW-1 who was sitting beside the driver seat by saying ಏ ಚನನ ಬ ನನನ ಮಮಲ ನನಗ ಆಸ ಇದ and by saying so, he tried to hold the hand of CW-1 through window, CW-4 screamed and A-1 to A-3 proceeded further.
c) When CW-1 screamed ಹಹಮಯ, A-2 who was driving the car, as per the directions of A-1, took the car in reverse direction and tried to dash the car against CW-1.
d) When CW-1 climbed on divider of the road and escaped, A-2 who was sitting on the back side seat of the car, got down; picked up a quarrel with CW-1 and started to scold CW-1 in filthy language.
e) A-1 who was sitting beside the driver got down; took out a knife; went near CW-4 by showing knife to her tried to kidnap her with an intention to outrage her modesty.
f) When CW-4 screamed, CW-1 came near her, A-1 by showing knife threatened him.
g) When CW-1 screamed for help, the public i.e., CWs-5 to 12 came near them and caught hold of A-2. A-1 4 SC.No:1286/2014 escaped from the spot in the car along with A-3. Accordingly, the complaint was filed.
3. After investigation, the charge sheet is filed against A-1 to A-3 for the above stated offences.
4. The jurisdictional Magistrate has taken the cognizance against A-1 to A-3 for the offences alleged.
5. Since the offences are exclusively triable by the Sessions Court, the trial Court has committed the case against A-1 to A-3.
7. On committal, the case was made over to this Court for disposal in accordance with law.
8. In response to the service of summons by this Court, A-2 and A-3 appeared before this Court and were enlarged on committal bail.
9. After hearing both the sides on framing charges, charges framed and plea of A-1 to A-3 was recorded for the offences punishable under Sections 367, 504, 354, 511 and 506 read with Section 34 of IPC for which, all of them pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial. 5 SC.No:1286/2014
10. In the course of trial, since A-1 remained absent; there was endorsement that CWs-13 and 15 though were present, they could not examined as A-1 and his counsel were absent and there was no representation for them, it appeared that there was no possibility of securing the presence of A-1 in near future, case against was split up on 12.03.2020 and a spit up case was registered against A-1 in SC.No.1662/2021.
11. The prosecution in all got examined 18 witnesses i.e., CWs-1, 3, 4, 2, 11, 6 to 10, 15, 13, 14, 12, 26, 5 and 28 as PWs-1 to 18 respectively. Got exhibited 18 documents at Ex.P-1 to 18. Got marked 1 material object at MO-1.
a) The learned public prosecutor sought process to CWs-17, 18 and 27. Since sufficient processes have already been issued which went in vain, holding that no purpose will be served even if the process is ordered to be issued and reissued to CWs-17, 18 and 27, the prayer of the prosecution is rejected.
12. The statement of A-2 and A-3 under Section 313 of Cr.P.C. was recorded wherein, they have denied all 6 SC.No:1286/2014 incriminating evidence against them in the deposition of the official witnesses, but have not let in any defence evidence.
13. Heard arguments of both the sides on merits of the case and perused the record.
14. Out of above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all reasonable doubt that A-2 and A-3 along with A-1 against whom this case is split up in SC.No.1662/2021, on 13.08.2014 at about 11:30 p.m., near Shivananda Circle, in front of Sea Rock Bar and Restaurant within the jurisdiction of High Grounds police station, when CWs-1, 4 and 5 were coming from the Bar after completion of party, A-1 to A- 3 came in a Tata Indica Car bearing registration No. KA-4 B-4912 and amongst them, A-1 told CW-4 ಏ ಚನನ ಬ ನನನ ಮಮಲ ನನಗ ಆಸ ಇದ and dragged her by holding her hand and attempted to kidnap her and thus, committed the offence punishable under Section 367 read with Sections 511 and 34 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that in continuation A-2 and A-3 along with A-1 against whom this case is split up 7 SC.No:1286/2014 in SC.No.1662/2021 in furtherance of their common intention, when CW-1 screamed loudly, on the directions of A-2, A-3 drove the car in reverse direction in order to dash against CW-
1. Thereafter, A-2 picked up quarrel with CW-1 and scolded him in filthy language and thus, committed the offence punishable under Section 504 read with Section 34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that A-2 and A-3 along with A-1 against whom this case is split up in SC.No.1662/2021 in continuation, A-1 brandished knife before the face of CW-4 and attempted to outrage her modesty and thus, committed the offence punishable under Section 354 read with Sections 511 and Section 34 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that A-2 and A-3 along with A-1 against whom this case is split up in SC.No.1662/2021 in continuation in furtherance of their common intention A-1 brandished knife to CW1 and intimidated injury to his life and thus, committed the offence punishable under Section 506 read with Section 34 of IPC?
5. What Order?
15. The answer of this Court to the above points are;
1. Points Nos.1 to 4 : In Negative.
8 SC.No:1286/2014
2. Point No.5 : As per the final order for the following reasons.
REASONS
16. POINTS Nos.1 TO 4:- As these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
17. Before venturing to discuss on merits, let this Court first to go through the provisions of the offences alleged to keep in mind the ingredients that attract those offences i.e., Sections 367, 511, 504, 354, 506 and 34 of IPC which are extracted here below;
"367. Kidnapping or abducting in order to subject person to grievous hurt slavery, etc. - Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be grievous hurt or slavery, or to the natural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten 9 SC.No:1286/2014 years, and shall also be liable to fine".
18. So, let this Court to go through the provision of Sections 359 to 362 which deal with kidnap and abduction and they read;
"359. Kidnapping.-
Kidnapping is of two kinds,
kidnapping from India and
kidnapping from lawful
guardianship".
"360. Kidnapping from
India.- Whoever conveys any
person beyond the limits of India
without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India".
19. So, the essential Ingredients to constitute kidnap are;
"(a) A person conveys any person beyond the limits of India.
b) He does so without the consent -
(i) of that person, or 10 SC.No:1286/2014
(ii) of some person legally authorized to consent on behalf of that person.
20. Sections 361 and 362 of IPC read;
"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under (sixteen)_ years of age if a male, or under (eighteen) years of age if a female, ...
21. So, the essential ingredients are;
a) A person takes or entices another person.
b) The person taken or enticed is;
(i) a minor under 16 years of age, if a male, or
(ii) a minor under 18 years of age if a female, or ...
"362. Abduction.- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person".
22. So, the essential ingredients constitute abduction are;
11 SC.No:1286/2014
a) A person compels or induces any person to go from any place.
b) Such compulsion is by force or such inducing is by deceitful means.
23. The next offence alleged is the offence under Section 504 of IPC which reads;
"504. Intentional insult with intent to provoke breach of the peace.- Whoever intentionally insults and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for term which may extend to two years, or with fine, or with both".
24. So, the essential ingredients to constitute the offence under Section 504 of IPC are;
a) A person intentionally insults any person.
b) He thereby gives provocation to that person.
c) He intends or knows it be likely that such provocation will cause him:
(i) to break the public peace, or 12 SC.No:1286/2014
ii) to commit any other offence.
25. The other offence alleged is the offence under Section 354 of IPC and it reads;
"354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assault 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 shall not be less than one year but which may extend to five years, and shall also liable to fine".
26. So, the essential ingredients to constitute the offence under Section 354 of IPC are;
a) A person -
(i) assaults or,
(ii) uses criminal force to a woman
b) He intends or knows it to be likely that he will thereby outrage her modesty".
27. The next offence alleged is the offence under Section 506 of IPC which is extracted here below: 13 SC.No:1286/2014
"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 thereat to be 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 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 of either description for a term which may extend to seven years, or with fine, or with both".
28. The other offence alleged is the offence under Section 511 of IPC and it reads;
"511. Punishment for attempting to commit offfences punishable with imprisonment for lief or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to case such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall where no express provision is made by this Code for the punishment of such 14 SC.No:1286/2014 attempt, be punished with imprisonment for any description provided for the offence, for a term which may extend to one-half of the imprisonment provided for life, or as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offences, or with both".
29. So, the essential ingredients that constitute the offence under Section 511 of IPC are;
a) A person attempts -
(i) to commit, or
(ii) to cause to be committed an offence punishable with imprisonment for life, or imprisonment.
b) in such attempt, he does any act towards commission of the offence.
c) No express provision is made for punishment of such attempt.
30. Section 34 of IPC reads;
"34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".15 SC.No:1286/2014
31. In the present case on hand, it is the allegation of the prosecution that on the alleged date, time and place, A- 1 teased CW-1 by saying ಏ ಚನನ ಬ ನನನ ಮಮಲ ನನಗ ಆಸ ಇದ and also tried to hold the hand of CW-1; A-2 took the car in reverse on the direction of A-1 to dash against CW-1; A-2 picked up a quarrel with CW-1 and started to scold him in filthy language; A-1 by showing knife to CW-4, tried to kidnap her with an intention to outrage her modesty. So, the above allegations attract the ingredients of the offences alleged noted above.
32. In this case, as noted above, the complainant police have filed charge sheet against A-1 to A-3 for the offences punishable under Sections 354, 367, 504, 506, 509 and 511 read with Section 34 of IPC.
33. But after hearing both the sides on framing charges, this Court framed charges against A-1 to A-3 for the offences under Sections 367 and 511, 504, 354 and 511, 506 read with Section 34 of IPC of IPC. So, it is burden on the prosecution to prove the guilt against A-1 to A-3, so for this case, A-2 and A-3 for the offence for which this Court has framed charges, i.e., the offences under 16 SC.No:1286/2014 Sections 367 and 511, 504, 354 and 511, 506 read with Section 34 of IPC beyond all reasonable doubt with the material, supportive and corroborative evidence.
34. During the course of trial, as noted above, the prosecution in all got examined 18 witnesses i.e. PWs-1 to PW-18. Got exhibited 18 documents at Ex.P-1 to Ex.P-18. Got marked 1 material object at MO-1.
35. It is in the charge sheet that CW-1 is the complainant victim and husband of the victim CW-4; the witness showed the spot to the IO to conduct spot mahazar; gave further statement about the identification of the accused. He is examined as PW-1 and has deposed that;
a) CW-4 is his wife. He does not know A-2 and A-3 present before the Court. He does not know A-1 by name Venkatesh.
b) On 13.08.2014, since there was first birthday of his son Master Ranadhir, he, his wife and his family members around 20 people had been to Sea Rock Bar and Restaurant for birthday party.
17 SC.No:1286/2014
c) After finishing the party, around 11:30 p.m., when they were moving back and he was on the other side of the road to take the car from the parking area, his wife called him and told that some three persons, who were in the car, teased her.
d) So, there was exchange of words between them and it turned into a galata. The police came over to the spot and took them to the station, wherein they received a complaint at Ex.P-1, in which, his signature is Ex.P-1(a).
e) He cannot identify the said three persons who teased his wife because of gap of time and since there were around 50 - 60 people gathered at the spot.
f) The document at Ex.P-2 bears his signature and it is Ex.P-2(a). He put the said signature in the police station.
g) On receipt of complaint, police did not visit the spot and conducted mahazar in his presence.
h) Nobody tried to kidnap his wife, threatened him showing the knife and assaulted him with the knife.
i) He did not see the knife at MO-1 before the date of his evidence before this Court.
18 SC.No:1286/2014
36. Since, CW-1 turned partially hostile to the prosecution, he was subjected to cross examination wherein he has admitted that CW-5 is his aunt and CW-6 is his mother, but has denied that CWs-5 and 6 were also present in the spot at the time of incident. At this stage, he has voluntarily stated that they were already left to the house and came later to the station.
37. In his cross examination for the prosecution, CW- 1 has also stated that he does not know if it is suggested that the persons teased his wife came in Indica car. At this stage, he has voluntarily stated that he did not observe. He does not know if it is suggested that A-1 was in the driver seat.
38. To a question that A-1 teased his wife and pulled her into the car by holding her hand, he has answered that there was no such incident, but they only teased his wife and has denied that A-3 tried to dash him by taking Indica car reverse; A-2, who came down from the car, picked up quarrel with him and abused him with filthy language; A-1 gave threat to him and his wife by showing the knife and tried to kidnap his wife.
19 SC.No:1286/2014
39. CW-1 has also denied the suggestions of the prosecution that;
a) He, his wife, his aunt and his mother together caught hold A-2 and saying all the above facts, he gave complaint at Ex.P-1, despite of that, compromising with the accused persons, he gave false evidence.
b) On 14.08.2014, police came to the spot to whom, he showed the spot and accordingly, they have conducted the mahazar at Ex.P-2 in between 9:00 a.m. and 10:00 a.m., in the presence of CWs-2 and 3.
c) On 28.08.2014, the police showed A-1 to him and he identified A-1 and in that regard, he gave further statements as per Ex.P-3 and 4 as read over to him, but despite of that, he gave false evidence.
d) Though A-1 to A-3, with a common intention, attempted to commit kidnap of his wife, gave life threat to them, abused them in filthy language, teased his wife and outraged her modesty, now in order to help the accused, he gave false evidence.
20 SC.No:1286/2014
40. Since CW-1 did not say anything against A-1 to A-3, there is no cross examination to him on behalf of the accused.
41. It is stated in the charge sheet that CW-2 Sri.Raghavendra and CW-3 Sri.Hemanthkumar are the panchas to the spot mahazar at Ex.P-2. Both of them are respectively examined as PWs-4 and 2.
42. It is in the evidence of CW-2 that;
a) His signature in Ex.P-2 is Ex.P-2(c) and he put the said signature around five years back, one day around 10:30 a.m., in High Grounds police station when he visited the station in connection with a case, where the police have seized the vehicle of his friend Sathya.
b) The police did not take him near Sea Rock Bar and Restaurant and conducted mahazar in his presence and he did not put his signature in the said spot.
43. On the other hand, CW-3 has deposed that his signature in Ex.P-2 is Ex.P-2(b) and put the said signature around 5 years back around 10:30 a.m., in High Ground police station, while he was proceeding to his job and he put the signature to blank paper on the request of police. 21 SC.No:1286/2014
44. Since, both CWs-2 and 3 turned hostile, the prosecution subjected them for cross examination and suggested that on 14.08.2014, police called them to become panchas to the spot mahazar conducted in between 9:00 and 10:00 a.m., near Sea Rock Bar and Restaurant near Shivananda Circle in respect of the present crime on the complainant showing the spot in their presence, despite of that, to help the accused, they gave false evidence.
45. As both CWs-2 and 3 turned completely hostile to the prosecution with regard to the spot mahazar at Ex.P-2, there is no cross examination to them on behalf of the accused.
46. It is in the charge sheet that CW-4 is the wife of CW-1 and the victim who identified A-1 to A-3 as well as gave her statement. She is examined as PW-3 and has deposed that;
a) CW-1 is her husband. CW-6 is her mother-in-law and CW-5 is the younger sister of CW-6.
b) She does not know A-2 and A-3 present before the Court and she does not know A-1 by name Venkatesh. 22 SC.No:1286/2014
c) On 13.08.2014, since there was first birthday of her son Master Ranadhir, she, her husband and her family members around 20 people had been to Sea Rock Bar and Restaurant for birthday party.
d) After finishing the party, around 11:30 p.m., when they were moving back and her husband was on the other side of the road to take the car from the parking area, she felt that some persons who came in the car teased her.
e) So, she called her husband and told the same to him. There was exchange of words between her husband and the people in the car. Since her son was crying, she went and sat in the car. The passing vehicles stopped there and there was some galata.
f) The accused persons did not commit any attempt to kidnap her and to outrage her modesty. They did not pose any threat either to her or her husband. They did not commit any sexual assault on her. She did not give any statement or further statement before the police about the incident and the identification of the accused persons.
47. So, the prosecution cross examined her and put forth its case by suggesting that;
23 SC.No:1286/2014
a) CWs-5 and 6 were also present in the spot at the time of incident. She not only denied the above suggestion, but also voluntarily stated that they were already left to the house and came later to the station.
b) She does not know if it is suggested that the persons teased her came in Indica car and she has voluntarily stated that she did not observe.
c) She does not know if it is suggested that A-1 was in the driver seat and has denied that;
(i) A-2, who came down from the car, picked up quarrel with her husband and abused him with filthy language.
(ii) A-1 gave threat to her and her husband by showing the knife and tried to kidnap her.
(iii) She, her husband, CWs-5 and 6 together caught hold A-2 and saying the above facts, she gave statement and further statements before the police on 15.08.2014 as read over to her as per Ex.P-5 to 7 and despite of that, she gave false evidence.
(iv) Though A-1 to A-3, with a common intention, attempted to kidnap her, gave life threat to them, abused 24 SC.No:1286/2014 them in filthy language, teased her and outraged her modesty, to help A-1 to A-3, she gave false evidence.
(v) A-1 threatened them by showing the knife at MO-1 showed to her.
48. Since she turned completely hostile with regard to the prosecution allegations against them, there is no cross examination to her on behalf of A-1 to A-3.
49. It is in the charge sheet that CWs-5 to 10 were present in the spot at the time of incident and thereby the eye witnesses to the incident. Amongst CWs-5 to 10, CWs- 5, 6, 9 and 10 are respectively the junior maternal aunt, mother, father and uncle of CW-1; CWs-7 and 8 are the mother and father of CW-4. There is no dispute with regard to the above relationship between, CWs-1 and 4 to 10.
50. CW-5 Smt.Varamahalakshmi has deposed that;
a) She own a chemical factory in Peenya, Bengaluru. CW-1 is the son of her elder sister Smt.Gangalakshmi (i.e., CW-6) and he was working in their chemical factory.
b) She does not know anything about the present crime. She was not present when the alleged incident was taken place. Thus, she does not know anything about the 25 SC.No:1286/2014 present case. She did not give any statement before the police in respect of the alleged incident if any.
51. So, she is cross examined for the prosecution, wherein she was suggested that;
a) On 13.08.2014, she along with her family members had been to dinner in Sea Rock Bar and Restaurant, near Shivananda Circle on the occasion of the birthday of Master.Ranadhir son of CW-1.
b) After dinner around 11:30 p.m., when they came out of the hotel, CW-1, his wife Smt.Manasa/CW-4 and herself were crossing the road.
c) By that time, a white Indica car came from Nehru Circle and there were 3 inmates in the car.
d) The car came near CW-4 and the inmate of the car on the seat by the side of driver, kindled CW-4 and asked her to join him and he also tried to pull her, by then CW-4 screamed; immediately, CW-1 shouted, the car which moved ahead came back from Shivananda Circle by taking the car reverse and tried to hit CW-1.
e) CW-1 escaped from the hit and stood by the side of divider and questioned the car driver. By that time, the 26 SC.No:1286/2014 inmate of the car on the back side came out of the car, abused CW-1 with filthy language.
f) The inmate of the car on the seat by the side of the driver all of a sudden de-boarded from the car and having a knife came near CW-4 and pointing her face with the knife tried to kidnap her.
g) When CW-4 screamed loudly, CW-1 tried to near her, the person having the knife tried to intimidate CW-1. By that time, when they shouted for help, the passers and the vehicle riders covered one of the said persons and assaulted them. The person holding the knife escaped in white Indica car along with the driver.
h) At the same time, the other family members i.e., the parents of CW-4, the father of CW-1 and his uncle as well as the owner of Sea Rock Hotel came to the spot and with the help of police, CW-1 went to the police station and lodged the complaint.
i) When he visited the station and enquired, he came to know that the said persons are Manjunatha and the person holding the knife was Venkatesha @ Kencha Venkatesha, the car driver was Beli. 27 SC.No:1286/2014
j) She was very much present in the spot and witnessed the incident personally as well as saying the above facts, she gave statement before the IO as per the statement read over to her at Ex.P-18, despite of that, she gave false evidence.
52. But, CW-5 has denied all the above suggestions.
53. As she has specifically deposed that the accused did not commit any offence and she stood on the same evidence even during her cross examination by denying the suggestions of the learned public prosecutor putting forth their case, there is no cross examination to CW-5 on behalf of the accused.
54. The evidence of other eye witnesses i.e., CWs-6 to 10 i.e., Smt.Gangalakshmamma; Sri.Ramkrishna; Smt.Shantha; Sri.Kempahonnaiah and Sri.B.N.Raju respectively is similar to each other. All of them stating about their relationship with CWs-1, 4 and 5, have deposed that;
a) They do not know A-2 and A-3 present before the Court and also A-1 by name Venkatesh. 28 SC.No:1286/2014
b) On 13.08.2014, since there was first birthday of the son of CWs-1 and 4 Master Ranadhir, all of them along with family members around 20 people had been to Sea Rock Bar and Restaurant for birthday party.
c) After finishing the party, they went back to the home. They heard that there was some galata, but they did not see the incident and they did not give any statement before the police stating that they personally witnessed the incident.
55. So, the prosecution cross examined all of them by treating as hostile witnesses and suggested that;
a) All of them were also present in the spot at the time of incident. But, they not only denied the above suggestion and also voluntarily stated that they were already left to the house.
b) They do not know if it is suggested that the accused persons present before the Court and A-1 Venkatesh @ Kiran teased CW-4 came in Indica car.
c) They do not know if it is suggested that A-1 was in the driver seat and has denied that;
29 SC.No:1286/2014
(i) A-2, who came down from the car, picked up quarrel with CW-1 and abused him with filthy language.
(ii) A-1 gave threat to CWs-1 and 4 by showing the knife and tried to kidnap CW-4; took the car reverse and tried to murder CW-1.
(iii) CWs-1 and 4 to 6, together caught hold A-2 and saying the above facts, they gave statements before the police on 15.08.2014 as read over to them as per Ex.P-9 to 13 and despite of that, they gave false evidence.
(iv) Though A-1 to A-3, with a common intention, attempted to commit kidnap CW-4; gave life threat to CWs- 1 and 4; abused them in filthy language; teased CW-4 and outraged her modesty; to help A-1 to A-3, they gave false evidence.
56. As all of them have denied all the suggestions related to the prosecution allegations against them, there is no cross examination to CWs-6 to 10 as well on behalf of the accused.
57. It is in the charge sheet that CW-11 Sri.Ganesh Rao is the owner and CW-12 Sri.Nuthan Hegde is the manager of the Sea Rock Bar and Restaurant. They are 30 SC.No:1286/2014 respectively examined as PWs-5 and 15. Amongst them, CW-11 has deposed that;
a) He does not know A-2 and A-3 present before the Court.
b) He knows CW-1 and his family members.
c) He is the owner of Sea Rock Bar and Restaurant, Shivananda Circle, Bengaluru.
d) On 13.08.2014, CW-1 along with his family members, relatives and friends, totally around 20 persons, came to their hotel to celebrate the birthday party of son of CW-1.
e) He heard by his staff that around 12:00 in the midnight, after finishing the birthday party, when CW-1 and his family members were outside the restaurant to proceed to their house, there was some galata took place since somebody tried to kindle the wife of CW-1.
f) In that regard, a police complaint was lodged and police took someone on the allegation that he kindled the wife of CW-1.
g) On receiving the information, in the midnight itself, he had been to the High Grounds police station and came 31 SC.No:1286/2014 to know that someone was arrested and put behind the bars. He did not see the said person. He met CW-1 and thereafter, went back. He did not give any statement before the police.
58. On the other hand, CW-12 has deposed that;
a) In the year 2014, he was the Manager at Sea Rock Bar and Restaurant at Shivananda Circle, Bengaluru.
b) He does not know A-2 and A-3 present before the Court.
c) He knows CW-1 and his family members.
d) In the year 2014, one day, to celebrate the birthday party, CW-1 along with his family members came to their hotel and after finishing the party, they went out.
e) He does not know anything with regard to the present case; he was inside the hotel and he did not witness the alleged incident and gave statement before the IO in that regard.
59. So, the prosecution subjected both of them as well to the cross examination and suggested that;
a) Both of them were present when the incident took place and they personally saw the incident. 32 SC.No:1286/2014
b) CW-1 and his wife were in the car; three persons came in white colour Indica car from Nehru Circle, Sheshadripuram.
c) The person sat beside the driver seat in the said car kindled the wife of CW-1, i.e., CW-4 Smt.Manasa by saying "a£ÀÄß ¨Á" and tried to drag her hand.
d) They saw the incident personally, when CW-4 sought for help, CW-1 came to the spot and by that time, the driver of the above car took the car reverse and tried to dash against CW-1, when CW-1 questioned, the person came out from the back seat, abused CW-1 with filthy language by saying "K£ÉÆà EªÁUÀ K£ï ªÀiÁrÛÃAiÀiÁ CPÀÌ£ï, CªÀÄä£ï".
e) The person who was in the driver seat, came out of the car and by showing knife, tried to kidnap CW-4; when she screamed and CW-1 tried to resist, by showing the knife, the said person threatened CW-1 with dire consequences.
f) The public at the spot and the passersby caught hold the person with knife and on enquiry, it was found that the said person was Manjunath, resident of 33 SC.No:1286/2014 Sadarahalli Gate, and the persons absconded from the spot were Venkatesh @ Kencha Venkatesh and the driver Vishwas @ Beli and saying the above facts, they gave statement before the police as per the statement read over to them at Ex.P-8 and 16 respectively, despite of that, in order to help the accused persons, they gave false evidence.
60. As both of them did not support the prosecution allegations against the accused, there is no cross examination to CWs-11 and 12 as well on behalf of the accused.
61. The next witnesses examined for the prosecution are CWs-13 and 14 Sri.Srijith and Sri.Ranjith the panchas to the seizure mahazar of the car and the knife used for commission of offence vide the seizure mahazar at Ex.P-15. They are respectively examined as PWs-13 and 14 and their evidence is similar to each other. Both of them have deposed that;
a) Their signatures in Ex.P-15 is Ex.P-15(a) and 15(b) respectively. They put the said signatures in High Ground police station around 6 years back in the evening, when 34 SC.No:1286/2014 they had been to the said police station to take permission for Ganesha Festival.
b) Since, the police asked to sign the document to accord permission, they signed Ex.P-15.
c) The police did not take them to any where from the station and did not seize any properties/vehicles in their presence.
d) The signatures showed to them over the chit affixed to MO-1 i.e., MO-1(a) are not their signatures i.e., MOs-1(b) and (c).
62. Therefore, both of them were also subjected to the cross examination and were suggested that on 28.08.2014, the High Ground police took them in front of Fortune Hotel on Race Course Road as led by the accused Venkatesha @ Kencha @ Kirana and seized the TATA Indica car used for commission offence bearing registration No.KA-04 B-4912 and the knife showed to them at MO-1 which was kept in the above car and produced by the above accused by conducting the mahazar at Ex.P-15 in their presence in between 8:00 a.m. and 9:00 a.m. and after reading over the 35 SC.No:1286/2014 contents therein, they signed Ex.P-15, despite of that, in order to help the accused, they gave false evidence.
63. The above suggestion is denied by both CWs-13 and 14. Thus, they remained completely hostile to the prosecution and therefore, they were also not subjected to cross examination for the accused.
64. The one more witness examined for the prosecution is CW-15 Sri.H.Narayanappa, the then ASI of High Grounds police station who brought A-2 from the spot/the place of incident to the station and produced before the IO. He is examined as PW-11 and has deposed that;
a) He was working as ASI in High Ground police station since, 2012 till his retirement.
b) On 13.08.2014, he was on night duty. Himself and the then PC Sri.Shivananda/CW-16 were on night beat in Hoysala-5 vehicle.
c) When they were on beat around 11:30 p.m., they received message from the control room that there was a galata near Sea Rock Bar and Restaurant at Shivananda Circle.
36 SC.No:1286/2014
d) Accordingly, they went there and found 100 people gathered at the spot and there was galata. The public caught hold one Manjunatha of Sadarahalli Gate. They took him to the custody from the public.
e) One amongst the public by name Suresh Gowda of Heggana Halli told that he had arranged a family party in Sea Rock Bar and Restaurant and after completion of the party, when they came out, on the road some body teased his wife and one amongst such persons also hold her hand and tried to pull her. Due to which, his wife screamed and told about the incident to him.
f) The said person also told that on hearing about the incident from his wife, he called the person who tried to pull his wife by saying "Hoi" and the said persons who were moving in a car, on hearing his sound came back by taking the car reverse.
g) The said person also stated to them that one person amongst in the car, came down and showed knife and threated; in the meanwhile, the public gathered at the spot; on seeing the public, 3 persons ran out from the spot in the car and caught hold one amongst them who is 37 SC.No:1286/2014 Manjunatha in the custody of the public when they reached the spot.
h) So, he told the said Suresh Gowda to come to the station to give the statement and they took Manjunatha in Hoysala-5 and went to the station as well as intimated about the incident and produced before the SHO i.e., the then PSI Sri.M.S.Ravi/CW-26 with his report at Ex.P-14, wherein his signature is Ex.P-14(a).
i) He identified the accused Manjuntha with his name specifically.
65. It is in the cross examination of CW-15 for the accused i.e., A-2 that;
a) On 13.08.2016, he came to the station for duty around 8:00 p.m. Normally, the role call in the station is at 8:30 a.m. and 8:30 p.m.
b) On 13.08.2016, also the role call was done at 8:30 p.m. He can say what was the duty allocated to him on 13.08.2016 without going through the station house dairy, but he cannot say the duty alloted to him on 16.08.2016 without going through the station house dairy. 38 SC.No:1286/2014
c) He has admitted that they are provided with beat note book to be carried while on beat and if they find any unwanted events, they are required to note the same in beat note book.
d) They did not enquire the names and addresses of the public alleged to be caught hold A-2.
e) He has denied that;
(i) CW-1 did not say before him as he has stated in his chief evidence in para Nos.1 to 3 at page No.2 i.e., about the alleged incident.
(ii) Though none of the public caught hold and hand over A-2 Manjunatha to them, he gave false evidence.
(iii) On 14.08.2016, around 9:00 a.m., they brought A-2 Manjunatha from his house and falsely implicated in this case.
(iv) His report at Ex.P-14 is created to conveniently to the case.
66. It is in the charge sheet that CWs-17 to 23 are the police officials deputed in search of absconding accused i.e., A-1. Amongst them, the prosecution got 39 SC.No:1286/2014 examined CW-23 Sri.Umesh the then PC. He is examined as PW-12 and has deposed that;
a) He was working as PC in Vayyali Kaval police station since 2007 to 2016. By that time, he was in DCP Squad since 2010 to 2016.
b) There was squad constituted under the leadership Sri.Rangappa/CW-27 the then PI Ashok Nagar police station and he was the one amongst the said squad.
c) On 18.08.2014, an information was received by his informants the suspect of the High Ground police station Crime No.233/2014 was moving from BDA junction towards palace ground on Hero Honda Passion Pro two wheeler.
d) Accordingly, CW-27 took him, Sri.Krishnamurthy/ CW-18, Sri.Navaz Khan/CW-20, Sri.Raghavendra/CW-22, Sri.Ulfath Ulla Khan/CW-19, Sri.Mafeez Khan/CW-21 i.e., the members of the squad in a private Scorpio private car and were waiting near BDA junction.
e) Around 2:15 p.m., the expected suspect came on Hero Honda Passion Pro two wheeler bearing registration No.KA-02 HV-1254, blue color towards BDA junction. So, 40 SC.No:1286/2014 they restrained him and enquired who revealed his name as Venaktesha @ Kencha. The PC Sri.Navaz Khan/CW-20 identified the suspect.
f) When they tried to arrest him, he resisted. PC Sri.Krishnamurthy/CW-18 forwarded to hold him. By that time, he took the knife in his waist and showed to CW-18 and threatened with dire consequences and also stabbed over waist.
g) The said person also tried to assault CW-27 with the same knife; because of which, CW-27 fired at the air with his service pistol. Due to which, the suspect/Venkatesha @ Kencha fell down on the road.
h) So, they neared him and found that the bullet passed near his right knee. Hence, CW-27 left him and Suresh as well as Ulfath Khan at the spot, sent the injured to the hospital and a case was registered in High Grounds police station in that regard.
i) During the course of investigation, he gave statement before the IO and he can identify the above suspect by name Venkatesh @ Kencha if he sees him again. 41 SC.No:1286/2014
67. As CW-23 deposed against A-1 against whom this case is split up in SC.No.1662/2021, there is no cross examination to him as well on behalf of A-2 and A-3.
68. The other witness examined for the prosecution is CW-26 Sri.M.S.Ravi, the then PSI who did the initial investigation of the case on hand. He is examined as PW- 16 and has deposed that;
a) He was working as PSI in High Grounds police station from October-2012 to August-2015.
b) On 14.08.2014, around 1:00 a.m., when he was in-charge of SHO, CW-1 Sri.Suresh Gowda came to the station and gave a written complaint at Ex.P-1, wherein his signature is Ex.P-1(b).
c) Based on Ex.P-1, he registered the case in Crime No.233/2014 and prepared the FIR at Ex.P-17, wherein his signature is Ex.P-17(a) and he sent the said FIR to the jurisdictional Magistrate and the copies thereof to his higher officers.
d) On the same day, around 1:30 a.m., the then ASI, Sri.H.Narayanappa/CW-15 and PC Sri.Shivananda/CW-16 who were on night duty, brought the accused by name 42 SC.No:1286/2014 Majunatha before him with the report of CW-15 at Ex.P- 14, wherein his signature is Ex.P-14(a).
e) Accordingly, he subjected A-2 to arrest procedures and recorded his voluntary statement, wherein he has accepted the commission of offence.
f) Thereafter, he had produced the accused before the jurisdictional Magistrate under the remand warrant and taken him to custody as the other accused were to be traced out.
g) He identified the above accused specifically with his name.
69. CW-26 has also deposed that;
a) Thereafter, on the same day, he visited the spot. CW-1 shown the spot to him. Accordingly, in the presence of the panchas by names Sri.Raghavendra and Sri,Hemantha Kumar, he conducted the spot mahazar in between 9:00 a.m. and 10:00 a.m. as per Ex.P-2, wherein his signature is Ex.P-2(d).
b) On 15.08.2014, he enquired the witnesses i.e., CWs-4 to 12 and recorded their statements. They gave 43 SC.No:1286/2014 statement before him as per Ex.P-5, 9 to 13, 8 and 16 respectively.
c) On 16.08.2014, he had produced A-2 from the police custody before the jurisdictional Magistrate under the remand warrant.
d) On 19.08.2014, in their station Crime No.243/2014, the then PI, Sri.E.B.Sridhara/CW-28 took A- 1 into custody and since he was gun shoot and sustained leg injuries, he was under treatment. Thus, the arrest formalities were completed on 27.08.2014 and recorded his voluntary statement and he annexed the said voluntary statement in this case.
e) On 28.08.2014, he recorded the further statements of CWs-1 and 4 with regard to the identification of the A-1, they gave further statements before him as per Ex.P-4 and 6 respectively.
f) On 29.08.2014, he took A-3 to the police custody who surrendered before the Court; enquired him and recorded his voluntary statement and thereafter, on 30.08.2014, he produced A-3 from the PC custody before 44 SC.No:1286/2014 the jurisdictional Magistrate under remand warrant and he has identified A-3 specifically with his name.
70. He has also deposed that thereafter, on the same day, he had haded over the case file to CW-28 for further investigation.
71. It is in the cross examination of CW-26 for A-2 that on 14.08.2014, he was in the station since from 9:00 a.m. and has denied that;
a) CW-1 did not come to the station and gave the written complaint as per Ex.P-1.
b) The FIR at Ex.P-17 was conveniently prepared by him.
c) CWs-15 and 16 did not take A-2 into custody and on the guise of enquiry, he secured the presence of A-2 in the morning on 14.08.2018 at 10:00 a.m. and falsely implicated him in the case.
d) Ex.P-1 and 17 were prepared on 14.08.2014 at 10:00 a.m. in the station convenient to the case.
e) CW-15 did not give any report to him much less Ex.P-14.
45 SC.No:1286/2014
72. He has also deposed that he did not issue any written notice to CWs-2 and 3 to become panchas to the spot mahazar at Ex.P-2 and has denied that;
a) He did not visit the spot and investigated, but created Ex.P-2 in the station.
b) None of the witnesses gave statement or further statement before him as per Ex.P-4 to 13 and 16.
c) A-2 did not give any voluntary statement before him.
73. In his cross examination for A-3, CW-26 has denied that;
a) Though there is no nexus between A-3 and the present case, intentionally his name is showed in the remand warrant because of which, he was forced to surrender before the Court.
b) He has created the voluntary statement of A-3 though he did not give any such voluntary statement.
74. The last witness examined for the prosecution is CW-28 Sri.E.B.Sridhar the then PI who filed the charge sheet against the accused. He is examined as PW-18 and has deposed that;
46 SC.No:1286/2014
a) He was working as PI, High Grounds police station since November-2013 to December-2014.
b) On 07.10.2014, he received the case file from the then PSI Sri.M.S.Ravi/CW-26; perused the record and found that the investigation was in order and there were prima facie materials against the accused for the offence alleged. Therefore, he prepared the charge sheet and submitted.
75. In his cross examination for A-2 and A-3, he has denied that though he found that there were no materials against A-2 and A-3 for any of the offences alleged, he filed false charge sheet mechanically.
76. So, the sum and substance of the evidence let in by the prosecution, though demonstrates that the prosecution is successful in letting in the evidence in respect of the facts that;
a) The relationship between CWs-1 and 4 to 10;
b) CWs-11 and 12 are the owner and manager of the Sea Rock Bar and Restaurant;
47 SC.No:1286/2014
c) CW-1 arranged a family party on the occasion of first birthday of his son in the above hotel on the date of alleged incident and CWs-5 to 10 attending the said party;
d) Somebody has kindled the wife of CW-1 i.e. CW-4 Smt.Manasa, while they came out of the hotel after finishing the party on the road;
e) There was some galata in respect of somebody kindling CW-4; and
f) CW-1 lodging the complaint in respect of the said incident, there is no evidence from the mouth of CWs-1 and 4 to 12 in respect of the involvement of the accused in the alleged incident. On the other hand, all of them not only denied the identification of the accused but have also specifically stated that A-2 and A-3 who are before the Court did not commit any offence against them and they do not know A-1 against whom this case is split up.
77. Though all the official witnesses i.e., CWs-15, 23, 26 and 28 deposed supporting the prosecution in respect of their part in the investigation of the case on hand, admittedly, the evidence of CW-23 is against A-1 in respect of his arrest against whom this case is split up. 48 SC.No:1286/2014
78. Though the evidence of CW-15 in respect of their taking A-2 Manjunatha into their custody and producing A-2 before CW-26 is partially supported by the evidence of CW-11 who has stated that he came to know that somebody was taken into custody by the police at the spot on the allegation that he teased CW-4, he has not stated either the name of A-2 or identified him.
79. On the other hand, even he has stated that he visited the station, he did not see the said person to whom the police taken into custody at the spot on the allegation of teasing CW-4. Thus, there is no supportive evidence to the oral testimony of CW-15 in respect of his taking A-2 into their custody and producing him before CW-26 as the other eye witnesses to the incident completely turned hostile in that regard.
80. CW-26 and 28 particularly CW-26 who did the material investigation of the case on hand deposed supporting the prosecution in respect of their portion of investigation. But, as noted above, none of CWs-1 and 4 to 12 supported the prosecution about the involvement of the accused in commission of the offence. 49 SC.No:1286/2014
81. CWs-1 to 3 did not support the prosecution in respect of the spot mahazar at Ex.P-2; CWs -13 and 14 did not support the prosecution in respect of the seizure of the vehicle and the weapon used for commission of offence vide Ex.P-15 (for that matter CW-28 who conducted the seizure mahazar at Ex.P-15 also did not say anything in that regard) as they completely turned hostile in that regard.
82. Therefore, there is no supportive evidence to the oral testimony of CWs-26 and 28. Accordingly, though the prosecution is successful in establishing the alleged incident, it has failed to establish the involvement of the accused in commission of the offence and thus, it has failed to bring home the guilt of the accused i.e., A-2 and A-3 for the offences alleged beyond all shadow of doubts. Accordingly, these points are answered in negative.
83. POINT No.3:- In view of the findings to the above points and for the reasons discussed above, this Court proceeds to pass following order.
ORDER Acting Under Section 235(1) of Cr.P.C., A-2 and A-3 are hereby acquitted for the offences punishable under Sections 367 and 50 SC.No:1286/2014 511, 504, 354 and 511, 506 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-2 and A-3 shall be canceled after lapse of appeal period.
Office is directed to keep the property at MO.1 intact for trial of the split up case against A-1 in SC.No.1662/2021.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 30th day of April, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:-
PW.1 Sri.Suresh Gowda
PW.2 Sri.Hemanth Kumar
PW.3 Smt.Manasa Suresh Gowda
PW.4 Sri.Raghavendra
PW.5 Sri.Ganesh Rao
PW.6 Sri.Gangalakshmamma
PW.7 Sri.Ramakrishna
PW.8 Smt.Kantha
PW.9 Sri.Kempahonnaiah
PW.10 Sri.Raju.B.N.
PW.11 Sri.H.Narayanappa
PW.12 Sri.Umesh
PW.13 Sri.Srijith
PW.14 Sri.Ranjith
PW.15 Sri.Nuthan Hegde
PW.16 Sri.Ravi.M.S.
PW.17 Smt.Varamahalakshmi
PW.18 Sri.E.B.Sridhara.
51 SC.No:1286/2014
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:-
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-1(b) Signature of PW16
Ex.P-2 Spot Mahazar
Ex.P-2(a) Signature of PW1
Ex.P-2(b) Signature of PW2
Ex.P-2(c) Signature of PW4
Ex.P-2(d) Signature of PW16
Ex.P-3 & 4 Portions of Further Statements of PW1 Ex.P-5 Portion of Statement of PW3 Ex.P-6 & 7 Portions of Further Statements of PW3 Ex.P-8 Portion of Statement of PW5 Ex.P-9 Portion of Statement of PW6 Ex.P-10 Portion of Statement of PW7 Ex.P-11 Portion of Statement of PW8 Ex.P-12 Portion of Statement of PW9 Ex.P-13 Portion of Statement of PW10 Ex.P-14 Report of PW11 Ex.P-14(a) Signature of PW11 Ex.P-14(b) Signature of PW16 52 SC.No:1286/2014 Ex.P-15 Seizure Mahazar Ex.P-15(a) Signature of PW13 Ex.P-15(b) Signature of PW14 Ex.P-16 Portion of Statement of PW15 Ex.P-17 FIR Ex.P-17(a) Signature of PW16 Ex.P-18 Portion of Statement of PW17 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO-1 Button Knife
MO-1(a) Chit
MO-1(b) Signature of PW13
MO-1(c) Signature of PW14
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru. 53 SC.No:1286/2014