Bangalore District Court
State By Jayanagar vs Vijaya Kumar on 29 April, 2015
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
(CCH 70)
Dated this the 29th day of April, 2015
-: PRESENT :-
SRI. SHUKLAKSHA PALAN, B.Com.,LL.M,
LXIX Addl. City Civil and Sessions Judge,
BANGALORE CITY
SESSIONS CASE NO.602/2012
Complainant: State by Jayanagar
Police Station
Vs.
Accused : Vijaya kumar
s/o Doddegowda,
Kapanigodanadoddi,
Uyyambahalli Hobali
Kanakapura taluk
Ramnagar.
Date of Commission of 13.2.2012
Offence
Date of Report of Offence 13.2.2012
Arrest of the Accused 13.2.2012
Name of the Complainant Umesh S.K.
Date of recording Evidence 26.9.2012
Date of closing Evidence 9.3.2015
Offences complained of u/Section. 307 and 332 of I.P.C
Opinion of the Judge As per final order
2 SC 602/2012
State represented by Public Prosecutor
Accused defended by Sri M.E.Mohan Kumar
(SHUKLAKSHA PALAN)
LXIX Addl. City Civil and Sessions Judge,
BANGALORE CITY
J U D G E M E N T
This Charge Sheet is filed by the Jayanagar Police against the accused person for the offence punishable u/s 307 and 332 of I.P.C. After filing of the charge sheet by the police before the II A.C.M.M., Bangalore for the above said offences, the learned Magistrate took cognizance of the offences in its CC No. 8916/2012 and committed this case to Hon`ble Prl. City Civil and Sessions Judge, Bangalore on compliance of provisions of section 207 and 209 of Cr.P.C. After that case was registered and numbered as SC No. 602/2012 and made over to this court for disposal in accordance with law.
2. The accused is on bail and represented by Sri M.E.Mohan Kumar. The State is represented by learned P.P. After hearing the matter the learned P.P. has opened the case as required under law, 3 SC 602/2012 by describing the charges brought against the accused with the evidence. He proposes to prove the guilt of the accused. On considering the records of the case and the materials submitted and after hearing both the sides, this court had opined that there are reasonable grounds to proceed against the accused, since the accused appears to have committed the alleged offences. Accordingly the charge was framed against the accused for the offence punishable u/s 307, 332 of I.P.C and the same was read over and explained to him. After understanding the charge the accused pleaded not guilty and claimed for the trial as required u/s 228(2) of Cr.P.C.
3. The sum and substance of the prosecution case is that on 13.2.2012 at about 9.45 p.m. when C.W. 6 Anasuya and her husband were walking on the road after taking meals, at that time the metro work was going on near 40th cross, 8th block, 4th main road, Jayanagar and this place is verymuch accent to the place of incident. When C.W.6 and her husband were moving so, the accused came there from their behind and snatched the gold mangala sutra from the neck of C.W. 6 and started to run away 4 SC 602/2012 from the spot. Immediately she raised hue and cry, the public moving on the road gathered and they have also started to chase the accused, at the very same time the complainant/Police Sub- Inspector and two other police officials who were on patrolling duty came there and all of them have chased the accused, but the accused did not stop running and made an attempt to assault the complainant, so the complainant warned the accused to stop running, inspite of it the accused did not stop running, so after warning the accused for two times with the help of the service pistol the complainant had made a gun shot on the left thigh of the accused and made him to fell on the ground. Immediately he fell on the road with his mobile phone. Thereafter the complainant shifted the accused to the hospital in order to provide treatment, the other officials have also followed the accused while he was running alongwith the gold mangala sutra and helped the P.S.I. Initially he was taken to Jayanagar General Hospital, there first aid treatment was given to him, at the time of giving first aid treatment the doctor able to recover the gold mangala sutra from pant packet of the accused 5 SC 602/2012 and at that time in the presence of mahazar witnesses the complainant had seized the same under mahazar and came to the Police Station and lodged the complaint against the accused by alleging that he made an attempt to commit murder of the complainant with knife. Hence a case was registered and he was taken to judicial custody.
Prior to lodging the complaint by the complainant, C.W. 6 and her husband have lodged a complaint against the accused for the offence of snatching gold mangala sutra belong to her.
Since the accused has denied the charges leveled against him, the prosecution made efforts to prove the case beyond all reasonable doubt. In this connection the prosecution is able to examine 9 witnesses and marked Ex.P.1 to P. 10 and M.O.No.1 to
5. The statement of the accused as required u/Section. 313 of Cr.P.C. is recorded where in the accused has denied all the incriminating circumstances, but not claimed for defence evidence.
6 SC 602/2012
4. Heard the arguments of the learned Public Prosecutor for the State and the learned Counsel for the accused. Perused the materials available on record.
5. Perused the materials on record, under mentioned points raised for my consideration are as under:
i. Whether the prosecution proves beyond all reasonable doubt that, on 13.2.2012 at about 9.45 p.m. near 8th Block, Jayanagar, the accused attempted to assault the complainant Umesh S.K the Police Inspector of Jayanagar Police Station, with knife with an intention to cause his murder, while escaping from the spot after snatching gold mangala sutra from C.W. 6 Anasuya, thereby committed the offence punishable under Section 307 of I.P.C?.
ii. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place the accused obstructed the complainant from discharging his official duty as a public servant, thereby committed the offence punishable under Section 332 of I.P.C?.
iii. What order?"
6. My findings on the above points are as under, Point no.1&2 : In the AFFIRMATIVE Point no.3 : as per final order for the following:
7 SC 602/2012
REASONS
7. Point No.1 : The alleged incident took place on 13.2.2012 at bout 9.30 p.m. near 8th Block, Jayanagar when the complainant and other police officials were doing their official duty in and around the jurisdiction of Jayanagar Police Station and while they came near 40th cross, 4th main, Jayanagar and when C.W. 6 and her husband were walking on the road, the accused came from their behind and snatched gold mangala sutra belong to C.W. 6 with the intention to make unlawful gain, when she started screaming the public moving on the road gathered and started to chase the accused, but they failed in this regard. On the other hand this complainant came to the spot on hearing the public hue and cry and followed the accused and he had warned the accused to stop running, but unfortunately the accused made an attempt to assault the complainant in a knife with the intention to escape from the spot alognwith the gold mangala sutra, Later on, left with no other alternative the complainant made a gun shot to his left thigh so as to made him fell. So, immediately accused fell down on the road. 8 SC 602/2012 Immediately on he was shifted to nearby General Hospital, there the mangala sutra belongs to C.W. 6 was recovered from the pant packet of the accused and thereafter a case was registered against the accused since he allegedly made an attempt to cause murder of the complainant with the intention to escape from the spot alongwith the robbed mangala sutra. Since the accused categorically denied all the circumstances, it made incumbent upon the prosecution to prove the case beyond all reasonable doubt. Hence it is to be seen that the witnesses examined on behalf of the prosecution are supporting the case of the prosecution and with the help of their statement whether the prosecution able to bring home the guilt of the accused. In this regard the prosecution examined the complainant P.W.1 S.K. Umesh, the Police Inspector of Jayanagar Police Station. No doubt he has supported the case of the prosecution and has deposed that while he was discharging his duty around the Police Station jurisdiction on 13.2.2012 at about 9.30 p.m. near 40th cross, 4th main, 8th Block, Jayanagar where the metro work is going on, the alleged incident taken place. He had chased the 9 SC 602/2012 accused to catch, but when the accused attempted to run away, he made a gun shot with the help of service pistol and able to apprehend the accused alognwith the gold mangala sutra, but it was recovered in the hospital by doctor in the presence of the mahazar witnesses. So the total statement of the complainant is definitely supporting the case of the prosecution. The complaint is marked as Ex.P.2, the recovery mahazar regarding recovery of M.O. 1 gold mangala sutra is marked as Ex.P.1. The complainant/Police Sub-Inspector is the Investigation Officer in this case and he himself conducted the mahazar on 13/14.2.2012 in the spot in the night at about 0.55 hours and seized the chopper (long knife) which was allegedly used by the accused as well as the pistol cartridge and the jeans pant of the accused. So here the complainant is the important witness and he is also to be treated like that, because while he was discharging his duty the accused allegedly made an attempt to cause his murder by hatching a plan with M.O.2 the knife which was in his possession at the time of snatching the gold mangala sutra from C.W. 6 when C.W. 6 and her husband were walking the road, at that time 10 SC 602/2012 the accused started running after snatched the gold mangala sutra from C.W. 6 and later on the complainant and other officials chased him and apprehended. Thereafter C.W. 6 and her husband have gone to the Police Station and lodged a complaint against the accused regarding mangala sutra snatching and in this regard a case u/Section. 392 of I.P.C was registered. The complaint filed for the offence u/Section. 392 of I.P.C is marked as Ex.P.10 and the copies are marked as Ex.P.10(b). But the said original complaint was returned to the concerned court as where the trial is also pending against the accused about snatching of the gold mangala sutra. Ex.P.6 is the true copy of the Station House Dairy extract dated 13.2.2012 which disclose the registration of the case in the first instance on the basis of the complain filed by CW. 6 (PW. 2) Anasuya and later on the complaint was filed by this complainant against the accused, which was also registered. So the document is also having a relevancy in the eye of law since it is a public document. The complainant was cross examined by the learned counsel for the accused. In the cross examination it is suggested that the 11 SC 602/2012 incident was taken place near 40th cross and this accused started running from 37th cross towards 40th cross, which was denied by him. He further admitted that earlier to the incident he did not know about this accused nor he is an habitual offender involved in other cases of their police station. He further admitted that PW. 2 Anasuya did not come to the spot where the complainant made a pistol shot to the left thigh of the accused. But those defences of the accused is not going to disprove the entire case of the prosecution because if it is proved from his mouth that PW. 2 that she did not followed the Accused because her husband is a heart patient, hence they gone to the house immediately and later on gone to the police station and lodged a complaint as per Ex.P.10. It is further proved from the mouth of the complainant that this accused started to hit the complainant with the help of the chopper, while the officials have made an attempt to apprehend him, but they have not able to apprehend the accused, so finally complainant made a gun shot from his pistol with the intention to caught hold the accused, then initially the accused was admitted to the general hospital. 12 SC 602/2012 Accordingly after taking him to the hospital and after providing; him first aid treatment the complaint was lodged as per Ex.P.2 and on the basis of the complaint case was registered. The witness also deposed about the fact thaat in the hospital the doctor removed the mangala sutra from the pant packet of the accused and that was recovered in the presence of the two mahazar witnesses and Ex.P.1 mahazar was also drawn in the hospital. But he admitted that he did not issue any notice to the seizure mahazar witnesses prior to drawing mahazar, nor made any search of the accused in the spot, because of the reason that the first preference ought to be given to get first aid treatment, since accused was injured with service pistol. He further deposed that later on in the spot mahazar was conducted as per Ex.P.3 and in the spot the mobile phone belong to the accused and the pistol cartridge and the chopper (long knife) have been seized. It is further deposed that the second mahazar was conducted in the spot at about 10.30 to 11.15 p.m. in the spot. He further admitted about not sending the cartridges for getting the opinion from the Ballistic Expert. But that fact is 13 SC 602/2012 not at all fatal to the case of the prosecution because of the reason that shooting of the accused with service pistol is an admitted fact and so far this accused did not file any complaint against the complainant or against any higher authorities. So in total the entire statement by the complainant is verymuch supporting the case of the prosecution. But the statement of the official witness excepted to be supported by independent eye witnesses or mahazar witnesses or any other circumstantial witnesses. It is not safe to consider statement of official witnesses because normally they are interesting in prosecuting the culprits. Under such circumstances it is to be seen that whether any such independent witnesses have been examined by the prosecution are supported or not.
8. To prove the first incident of mangala sutra snatching belonging to CW. 6 the prosecution examined Anasuya/CW. 6 as PW. 2 and she had also categorically stated about the incident took place while she was moving on the road alongwith her husband and she had also stated about mangala sutra snatched by the accused person and also deposed about the presence of the 14 SC 602/2012 witnesses Dilipraj (PW. 5) and others and stated about the presence of the police officials in the spot and their attempt to caught hold the accused as well as lodging the complaint before the police. So from the mouth of this witness the first incident of mangala sutra snatching is proved. Inspite of the fact that she has been cross examined by the learned defence counsel at length, her evidence was supportive. It is her specific contention that when the accused after snatched her gold mangala sutra started running the public as well as the police officials have chased him, on the other hand she had also followed them for some distance but she could not reach the spot of the incident happened subsequently. She categorically turned down the suggestion put to her that she did not identify the accused in the court. She further admitted that metro railway work is going on near 40th cross of Jayanagar and she further admitted the presence of the accused in the spot and that spot is easily recognizable and identifiable by the public. It is also her specific statement that the witnesses Dilipraj later on told her about the shoot out incident taken place subsequently and in the next day 15 SC 602/2012 she had been to the police station and identified her gold mangala sutra. Later on that was released in her favour as per the orders of the court. So the witness even cross examined by the learned defence counsel, he failed to draw any admissions in favour of the accused. It is also proved from the mouth of this witness that she is not having enmity against the accused nor she had yielded to the case of the prosecution. Absolutely there is no reason to disbelieve the entire statement of PW. 2.
9. The prosecution examined PW. 3 Rafiq and PW. 5 Dilipraj, these are the two independent eye witnesses cum recovery mahazar witnesses regarding recovery of gold mangala sutra of PW. 2, which was taken by the doctor in the hospital from the pocket of the accused. Both the eye witnesses have stated that while they were talking to each other near 36th cross, they saw that the accused was running alongwith gold mangala sutra of PW. 2 and also they saw about chasing of the accused by the police officials. Accordingly they have also followed them. Both the witnesses have further stated about the subsequent incident taken place near the 40th cross of 16 SC 602/2012 Jayanagar 8th block. PW. 3 Rafiq had categorically stated that while the complainant was chasing the accused, the accused tried to assault the complainant with chopper (long knife), twice. So finally the complainant made a gun shot on this accused through the service pistol to apprehend him and immediately shifted the accused to the hospital for treatment. To disprove this portion of evidence the learned defence counsel has not at all made any cross examination to the witnesses. PW. 5 Dilipraj also stated about the incident, but he has also not cross examined by the learned defence counsel on this specific point, so basing on the statements of PW. 3 and 5 that with MO.2 the accused try to assault PW.1, then, in order to protect from the assault the complainant had made a shot on left leg of the accused with his service pistol. This portion of statement is not at all disproved by the learned defence counsel inspite of the fact that he was cross examined in length. It is proved from PW. 3 that the complainant and other officials came to the spot in a jeep, they were in three numbers, the accused was holding long chopper in his hand which was measuring nearby 1 ¾ feet. It is 17 SC 602/2012 also further proved that the accused was running, so the complainant made a gun shot on him. Later on he was shifted to the hospital through Hoysala and he and PW. 5 have signed the recovery mahazar Ex.P.1 in the hospital and MO.1 was recovered from the pant packet of the accused.
10. PW. 5 in his statement has also deposed that the accused removed the knife from his pant and made an attempt to assault PW. 1, he was at about 10 feet way from the spot, he also found the presence of PW. 3 Rafiq at that time alognwith the complainant, the complainant started firing by keeping the gap of 4 to 5 feet from him and the accused sustained injury on his left thigh. Later on he was shifted to the hospital for treatment. This portion of the statement of this witness is very much supporting the case of the prosecution. On perusal of the total statement of this witness, it is no reason to disbelieve the case of the prosecution about running of the accused alongwith MO. 1 gold mangala sutra belong to P.W. 2. Later on the witness as well as the complainant and others have chased and the complainant made an attempt to apprehend him, the accused try to assault 18 SC 602/2012 the complainant with chopper, so the complainant left with no other alternative fired towards the accused, only with the intention to apprehend him. So the statement of this witness is verymuch sufficient since it is corroborative with the statement of the complainant and even PW. 2 also.
11. The prosecution examined PW. 4 B.Manu D who happened to be the seizure mahazar witness about seizure of MO.1 gold mangala sutra, chopper MO.2, cartridge MO.3, mobile phone of the accused MO.4 and pant of the accused which was wore by him marked as MO.5. The recovery of the material objects from the spot is definitely proved and spot of the incident is also proved, but the only fact is that the witness is not belongs to this locality and the police have not issued any notice to him as proved from his mouth. But these defects are curable when sufficient evidence is available on record. On the other hand the recovery of the material objects from the spot by the I.O. is proved inspite of cross examination made by the learned defence counsel. Alongwith this witness one Venkatesh 19 SC 602/2012 also signed the said mahazar as proved form the mouth of this witness. So the seizure is satisfactorily established.
12. PW. 6 'Dr. R.Jagadish the doctor who gave treatment to the accused subsequently in Victoria Hospital, has deposed that because of the reason that there was no facility available in the general hospital to give treatment to the accused, the accused was brought to Victoria Hospital. It is the statement of this witness that while he saw the accused in the first instance he found that the first aid treatment was given to him and he took him to operation theater for conducting the surgery. It is also his statement that the said wound appears to have been caused in a bullet. Accordingly he gave the certificate as per Ex.P.9. He was not cross examined by the defence counsel, so, the statement remained unchallenged. The over all statement given by this witness is no doubt supporting the case of the prosecution.
13 PW. 7 Vinay Kumar the police constable has deposed that he was also present alongwith the complainant when the incident occurred. This witness also supported the case of the 20 SC 602/2012 prosecution about the attempt made by the accused to assault the complainant with the chopper (long knife) with the intention to commit his murder, the accused made an attempt to hit on the vital parts of the body. Later on he assisted the complainant to shift the accused to the hospital. He was present at the time of recovery of M.O. 1 from the pant pocket of the accused, in the hospital, but in his cross examination he had given the version that he himself received the pant given by the doctor before the complainant in the police station and subsequently he deposed that the said pant was produced by him before the I.O. while drawing the mahazar in the spot. These are the contradiction statement given by the witness in the cross examination, that do not damage the case of the prosecution since it is proved otherwise from the mouth of the prosecution witnesses as stated above.
14. PW. 8 Dr. M.V.Kumar, the doctor of Jayanagar General Hospital has deposed that he had given first aid treatment to the injured, he had deposed about recovery of mangala sutra from the accused, he had also identified the mangala sutra which was 21 SC 602/2012 recovered by him from the pant packet of the accused in the hospital, but unfortunately he could not identify the pant which is allegedly belong to the accused and he failed to identify the mangala sutra by seeing the photo, because of the reason that he could not recall his memory. But for that matter the entire case of the prosecution cannot be disbelieved. Since the other witnesses have supported the case of the prosecution. In the cross examination he admitted that he did not mention the age of the injury sustained by the accused, while giving first aid treatment to the accused, but only because of the reason that the instruments were not available in their hospital, they have referred the patient to Victoria Hospital for better treatment. Later on he has produced the M.L.C. register which is marked as Ex.P.10 and certified copy is marked as EX.P.10(a). So the over all statement of this witness is no where damaging the entire case of the prosecution.
15. Learned Public Prosecutor has canvassed that the prosecution has filed the case for the offence u/sec. 307, 332 of I.P.C. Such being the case eventhough the complainant did not 22 SC 602/2012 sustained any injuries when the accused made an attempt to assault him through MO. 2, on the other hand the police officials followed the accused and the public raised hue and cry and inspite of that the accused made an attempt to assault the complainant, so left with no other alternative in order to protect himself from the assault of the accused the complainant started firing and caused injury to his leg through the pistol and able to apprehend him and able to recover the property belong to PW. 2 in the presence of the recovery mahazar witnesses. The prosecution able to prove the attempt made by the accused to cause injury to the complainant with the intention to commit murder in order to escape with robbed gold mangala sutra. The witnesses who were present chased the accused along with the complainant, they have also supported the case of the prosecution. Further there is recovery of empty cartridges from the spot and the mobile phone of the accused was also seized. So the evidence on record is verymuch sufficient to prosecute the accused for the above referred offences. Hence prays to convict the accused.
23 SC 602/2012
16. On the other hand the learned counsel for the accused has canvassed that the prosecution has failed to prove its case through the material witnesses and there are several contradictions in the evidence, hence the accused is liable to be acquitted on the basis of the contrary statements. The statement of the witness about running of accused alongwith MO.1 towards 40th cross is not proved from the witnesses. On the other hand it is also stated and proved that he was running towards opposite direction, there are contradictions in the statement of the witnesses on this aspect and they are to be considered as material contradictions. Further the mahazar conducted in the spot and in the police station are having the same timings and hence that could not be done. Hence, the recovery mahazar and the spot mahazar are to be disbelieved. He further argued PW. 3 in his statement has stated that he signed the mahazar after understanding its contents , but PW. 7 did not stated about the incident, about place of seizure of the pant of the accused, so, there is contradiction, the street light was available in the spot, on the other hand there is no whisper 24 SC 602/2012 about this fact from the mouth of the prosecution witnesses, the independent local witnesses have not been examined by the prosecution and not taken their assistance for the purpose of mahazar, Further it is argued that the complainant himself filed the charge sheet against the accused person which is verymucy fatal to the case of the prosecution.
18. In support of the argument the learned counsel for the accused has cited a decision reported in ILR 1996 Kar page 3419 (Manoha vs. State of Karnataka) wherein it was held that if there is difference about injuries mentioned in the wound certificate and the nature of weapon used and if the injury is not suits to the weapon, there is no scope for awarding conviction. He has also relied on a decision reported in 1995 Crl.LJ page 3988 (Megha Singh vs. State of Haryana) about the fact that there are several discrepancies available in the statement made by the prosecution witnesses, the prosecution story cannot be believed. He further relied on a decision reported in 2005 Crl. LJ page 377 (State of Karnataka vs. Sheshadri Shetty and others) and 1997 SCC (Cri) 267 (Umashankar Sitani vs. Commissioner of 25 SC 602/2012 Police, Delhi and others), about the fact that the complainant cannot be treated as Investigating Officer. If, that is so, his over all statement is to be disbelieved. Accordingly the learned counsel prays to acquit the accused.
19. In reply argument the learned Public Prosecutor has cited a decision reported in 2003 Crl.LJ 1422 (Jayaram vs. State of Karnataka) wherein it held that; the investigation of the case by person (police officer) Not vitiated. On the same principles the learned Public Prosecutor as cited a decision reported in 2010 (3) Crimes 682 (Del) where it was held that; it is not proper and permissible to doubt the evidence of Police Officer. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.` Accordingly the learned Public Prosecutor has drawn the attention of the court that the evidence of PW. 1 is definitely not fatal, eventhough he had played a duel role of complainant as well as Investigating Officer. He has also relied on a citation reported in 1981 Crl.LJ 9 (Supreme Court) (State of Maharashtra vs. Krishnamurthy Laxmipati Naidu) with regard to the principles 26 SC 602/2012 that minor variation in examination in chief and cross examination does not affect the credibility of the witness. AIR 1975 SC 667 (Ch. Razik Ram vs. Ch. J.S.Chouhan and others) where it was held by their Lordship that the witness not deposing to same facts truthfully - no ground for rejecting whole body of his testimony. The grin in his evidence can be shifted from the chaff in the light of the other evidence and the surrounding circumstances and probabilities of the case`. So basing upon both the decisions it can found that even there are some minor contradictions, omissions and improvements available in the statement of the witnesses, that do not expunge the entire case of the prosecution as well as eventhough one witness has been turned hostile, what are his supportive versions to the prosecution case are required to be believed by the court.
20. The learned Public Prosecutor has also cited a decision reported in 2010 (3) Crimes 691 (Bom) (Mr. Bhau Valve vs. State through the Public Prosecutor) about the fact in issue that `Defective investigation cannot be made as a basis for acquitting the accused if despite such defects and failures of the 27 SC 602/2012 investigation, a case is made out against all the accused or anyone of them`. Under such circumstances this court feels that several lacunas are unattended by the I.O. during the course of investigation and he did not followed some of the formalities, would not be the good ground to acquit the accused if there is sufficient evidence available on record.
21. The learned Public Prosecutor has also relied on a citation reported in 2004 Crl.LJ 3834 (S.Jeevanantham vs. The State through Inspector of Police, Tamil Nadu) about the fact that if the Investigating Officer played duel role of complainant and the I.O. his entire statement could not be thrown away. On the very same footing he has relied on a decision reported in 2004 1819 ( Tamil Nadu vs. V.Jayapaul) wherein it is held that `Investigation of cognizable offence - Very same Police Officer who recorded FIR on basis of information received, registered suspected crime - Is competent to take up investigation and submit final report - Bias of prejudice cannot be ipso facto inferred for quashing proceedings -Question of bias depends on facts and circumstances of each case. The learned Public 28 SC 602/2012 Prosecutor has also relied on a citation reported in 2009(2) Crimes 80(SC) (Bhaskar Ramappa Madar and others vs. State of Karnataka) wherein it is held that (a)Criminal Trial - There is no legal bar in the complainant undertaking investigation. So basing upon the evidence on record and the principles laid down in the citations, this court feels that absolutely there is no bar to convict the accused for the offence u/sec.307 of I.P.C.
22. Now it is to be seen that whether the statement of material witnesses should be believed or not. Among the other witnesses PW.2 Anasuya, PW. 3 Rafiq, PW.4 Manu and P.W. 5 Dilipraj are the independent witnesses of this case. PW. 2 has spoken about the snatch of the mangala sutra from her neck by the accused, she had identified the same in the police station in the next day. While the accused was running from the spot after snatching the mangala sutra belongs to her, she made cry, that immediately drawn attention of the persons moving on the road who are P.W.3 to 5. They have told about running of the accused and the attempt made by him to assault the complainant while chasing. After that they have stated about shifting of accused to 29 SC 602/2012 the hospital as well as recovery of gold mangala sutra M.O.No. 1 from the pant pocket of the accused. PW. 4 Manu is one of the independent recovery mahazar witness regarding recovery of empty cartridges, the knife MO.2 and the mobile phone and pant of the accused. The independent witnesses have not at all having enmity against the accused. Such being the case why their statement could not be accepted by this court?. It is also rightly drawn the attention of the court during the course of argument that as admitted by PW. 1 the accused is not a habitual offender and not involved in any other case. But this court feels that the good conduct of the accused is eventhough relevant in criminal cases as contemplated u/sec. 53 of Indian Evidence Act, but for the reason that there are sufficient material evidence on record to prove the fact of snatching mangala sutra and attempt made by the accused to assault the complainant with the intention to commit his murder. His good conduct is immaterial. The contention of the accused that he has been falsely implicated while he was riding the vehicle belong to his friend is not at all proved by any independent evidence. He has stated in the 30 SC 602/2012 statement recorded u/sec. 313 of Cr.P.C. that after completing his work in Bar and Restaurant he was going towards his house situated near Jayanagar Police Station and his vehicle was stopped by the police and asked him to produce the documents relating to vehicle, but he disclosed that he is not having the same because the vehicle belongs to his friend. Hence he had been falsely implicated in this case on hand since he was called to Police Station. On the other hand all these contentions have not been defended by the accused at the time of cross examination of the Police Inspector who is also the Investigating Officer. So the said versions of the accused going to prove that he was taken to the Police Station by the police, but the purpose as alleged by him is not proved. He himself has not been examined before the court nor he has produced said vehicle documents before the court. Without any material on record this contention urged by the accused in his 313 statement given u/sec. 313 of Cr.P.C. cannot be considered that the complainant had made a gun shot at him through his pistol with an intention to falsely implicate him. Further the Investigating 31 SC 602/2012 Officer has stated that both mahazas are recorded in the same period with little difference in timings since both the places are situated in little distance. Under such circumstances eventhough there is no difference in timings in both mahazars, that would not disprove the entire case of the prosecution. If MO. 2 is examined it is a sharp edged steel object having length of 1 ¾ feet with a handle. Under such circumstances if a single blow is fallen either on the neck or on any other vital part of the body, that itself is sufficient to take away the life of a person. When the accused was injured by the police through pistol and eye witnesses were also present in the spot, not disclosing the identification marks of the accused in the record itself is also not at all fatal to the case of the prosecution. Hence on this ground this court has totally turned down the argument canvassed by the learned defence counsel and accepted the argument of Public Prosecution. .
23. The ingredients of section 307 of I.P.C:
Initially the prosecution has to prove that whether the act committed by the accused person must be capable of 32 SC 602/2012 causing death or the prevailing circumstances will so that only with the intention to commit the murder such an act has been made by this accused. No doubt this accused is not having any preparation to commit such an offence nor such mensrea. It is also not established in the defence that the enmity prevails in between the complainant and the accused. It is the defence of the accused that he is not a habitual offender. Such being the case the complainant had no intention to falsely implicate him, on the other hand when the complainant being the police official chased the accused while he was running with gold mangala sutra with the idea that in case he had caught hold by the complainant he will be prosecuted, accordingly during that point of time definitely he had an intention to assault the complainant in order to escape. Under such circumstances this court feel that eventhough initially the accused had no such intention to assault the complainant, since he had been chased by the complainant, the accused under the apprehension might have grown such an intention against the complainant. That intention is definitely motivated him to put into action and because of that reason he 33 SC 602/2012 made an attempt to assault the complainant. Further, it is proved from the material evidence on record that he was holding sword like weapon and intention behind holding such weapon is also to be gathered from the available circumstances. In this regard in a citation reported in AIR 1988 SC 2127, their Lordship held that the intention or knowledge of the accused must be stated as is necessary to constitute murder, Without this ingredient being established there can be no offence of `attempt to murder`.
U/sec. 307 the intention precedes the act attributed to the accused, therefore, the intention is to be gathered from all circumstances and not merely from the consequences that ensure.` So, it is revealed from the circumstance that the accused had intention to cause murder of the complainant, hence he had try to assault the complainant with MO.2. So the material ingredients of section 307 attracts.
24. So as gathered from the material evidence on record this court feels that the material ingredients as required u/sec. 307 of I.P.C. attracts and the same is established by the prosecution. Hence the accused is liable to be convicted for the 34 SC 602/2012 offence u//sec. 307 of IPC. Accordingly I answer point No.1 in the affirmative.
25. Point No.2: In this section the prosecution has to establish that the accused has voluntarily caused hurt to deter the public servant from discharging his duty. It is an undisputed fact as well as proved before this court that the complainant is a public servant and he had been withhold by the accused while discharging his duty. It is also established that while this public servant chased the accused for the purpose of apprehending him, he made an attempt to assault with MO.2 with the intention to cause murder. By doing so, the accused definitely had made an attempt to restrain a person from discharging his duty as a public servant. So the material ingredients of section 332 of I.P.C also attract eventhough the accused not caused any hurt or injuries to the complainant during that point of time. Such being the case the accused is also to be punished for the offence u/sec. 332 of IPC. So in view of the discussion made above in point No.1, this court feels that the accused is also to be punished for the offence u/sec. 332 of IPC. Viewed from any 35 SC 602/2012 angle this court feel that the prosecution has able to bring home the guilt of the accused beyond all reasonable doubt. Hence I answered point no. 2 in the affirmative.
26. Point No.3: In the result, I proceed to pass the following:
O R D E R Acting under Section 235 (2) of Cr.P.C. accused is hereby convicted for the offence punishable u/s 307, 332 of I.P.C .
To hear regarding sentence.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and pronounced by me in open Court on this the 29th day of April, 2015) (SHUKLAKSHA PALAN) LXIX Addl. City Civil and Sessions Judge, BANGALORE CITY 2.5.2015.
ORDER REGARDING SENTENCE Heard the argument canvassed by learned Public Prosecutor and the learned counsel for the accused.
It was argued by the learned Public Prosecutor that case made out against the accused persons is proved by the prosecution beyond all reasonable doubt, the accused not only robbed the valuable property but also attacked the public servant while discharing the official duty, under the impression that the public servant may arrest him, when he was running 36 SC 602/2012 alongwith booty. Such being the case the said person does not need sympathy. Hence maximum sentence is to imposed on him. On the other hand the learned counsel for the accused Sri Mohan Kumar has argued that the accused is having aged parents and unmarried sister, they depending upon his income and the marriage of the sister is to be performed within a short period, at the most minimum punishment may be imposed for both the offences thereby enable him to release on suspension of sentence to be passed by this court. Hence the learned counsel prays to pass an order of sentence by showing sympathy upon the accused.
No doubt it is established from the available material on record that the accused committed the offence punishable u/sec. 307 and 332 of IPC, by that he had made an atrempt to cause the murder of a public servant while discharing the official duty, when he was running away from the spot alongwith gold mangala sutra belong to PW. 2. such being the case no doubt the accused like persons shall be punished severaly because it will create a good impression and confidence in the society. No doubt The accused did not cause any hurt to the complainant inspite of his attack with MO.2. Since the learned defence counsel did not produce any material in support of his argument that his parents are aged and sister is in the threshold of marriage, such being the case even by considering this aspect, this court feels that the accused may be punished with minimum sentence by showing some leniency. Accordingly I hereby pass the following: 37 SC 602/2012
ORDER For the offences punishable u/Section 307 of I.P.C I hereby sentenced the accused to undergo imprisonment for a period of 4 years and to pay fine of Rs.5000/-, and in default to pay the fine amount, the accused is hereby directed to undergo simple imprisonment for one month.
For the offence punishable u/Section. 332 of I.P.C I hereby sentenced the accused to undergo imprisonment for a period of one year and to pay fine of Rs. 500/- and in default to pay the fine amount the accused is hereby directed to undergo simple imprisonment for a period of 10 days.
All the sentences should run concurrently. The M.O.1 mangala sutra released in favour of PW. 2 is made absolute, the MO.2 and 4 are ordered to be confiscated to the State and remaining materials objects being worthless are ordered to be destroyed after the appeal period is over.
The number of days spent in judicial custody by the accused persons is given in set off.
Office is directed to provide free copy of judgment to the accused, immediately.
(SHUKLAKSHA PALAN) LXIX Addl. City Civil and Sessions Judge, BANGALORE CITY 38 SC 602/2012 A N N E X U R E List of witnesses examined on behalf of the prosecution:-
PW.1 S.K.Umesh PW.2 Anasuya PW.3 Rafiq PW.4 Manu D PW.5 Dilipraj PW.6 Dr. Jagadish R PW.7 Vinayakumar PW.8 Dr. Kumar M.V. For Defence:- - NIL -
List of exhibits marked on behalf of the Prosecution:-
Ex.P.1 Mahazar
Ex.P.2 Complaint
Ex.P.3 Panchanama
Ex.P.4 Photo
Ex.P.5 Wound certificate
Ex.P.6 Station dairy
Ex.P.7 FIR
Ex.P.8 FIR
Ex.P.9 Feed Back Reference
Ex.P.10 Complaint
For defence side:- Nil
List of material objects marked:-
MO.1 Gold chain
MO.2 Knife
MO.3 Empty cartridge
MO.4 Mobile phone
MO.5 Pant
(SHUKLAKSHA PALAN)
LXIX Addl. City Civil and Sessions Judge,
BANGALORE CITY
39 SC 602/2012
40 SC 602/2012
Judgment pronounced in open court vide
separate order;
O R D E R
Acting under Section 235 (2) of Cr.P.C.
accused is hereby convicted for the offence
punishable u/s 307, 332 of I.P.C .
To hear regarding sentence.
(SHUKLAKSHA PALAN)
LXIX Addl. City Civil and Sessions Judge,
BANGALORE CITY
41 SC 602/2012
ORDER
For the offences punishable u/Section 307 of I.P.C I hereby sentenced the accused to undergo imprisonment for a period of 4 years and to pay fine of Rs.5000/-, and in default to pay the fine amount, the accused is hereby directed to undergo simple imprisonment for one month. For the offence punishable u/Section. 332 of I.P.C I hereby sentenced the accused to undergo imprisonment for a period of one year and to pay fine of Rs. 500/- and in default to pay the fine amount the accused is hereby directed to undergo simple imprisonment for a period of 10 days.
All the sentences should run concurrently. The M.O.1 mangala sutra released in favour of PW. 2 is made absolute, the MO.2 and 4 are ordered to be confiscated to the State and remaining materials objects being worthless are ordered to be destroyed after the appeal period is over.
The number of days spent in judicial custody by the accused persons is given in set off.
Office is directed to provide free copy of judgment to the accused, immediately.
(SHUKLAKSHA PALAN) LXIX Addl. City Civil and Sessions Judge, BANGALORE CITY